text:
    STATE of Ohio, Plaintiff-Appellee, v. Kimani O. HODGES, Defendant-Appellant.
    NO. 17 MA 0025
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: January 30, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellee
    Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 N. Phelps St., Youngstown, Ohio 44503, For Defendant-Appellant
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Kimani Hodges appeals the decision of the Mahoning County Common Pleas Court denying his motion to dismiss his criminal case on double-jeopardy grounds. Appellant contends the prosecutor engaged in misconduct and intentionally goaded the defense into seeking a mistrial, which triggered the exception to the doctrine allowing retrial after a court grants a defendant's mistrial motion. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} On February 17, 2016, Jason Fonseca was shot multiple times in front of his house. That same day, Appellant was arrested and charged with the murder. On February 25, 2016, Appellant was jointly indicted with Angel Bell on a count of aggravated murder for purposely causing the victim's death with prior calculation and design. A firearm specification was attached to the charge. Appellant was also indicted for having a weapon while under disability, and he waived his right to a jury trial on this offense.

{¶ 3} The joint jury trial for the aggravated murder count commenced on January 3, 2017, on which date a jury was impaneled and sworn. The state presented evidence on January 4 and 5, 2017. Partway through the state's case, Noel Rios was called as a witness. He explained he was dressed in orange as he was a federal prisoner. (Tr. 266-267). The victim was his cousin, and he witnessed the daylight shooting as he stood outside near the scene. (Tr. 268-269). He said: Appellant pulled up in a vehicle; Appellant spoke to him; the victim came out of the house and argued with Appellant; Appellant brandished a gun; the victim and Appellant tussled over the gun; and multiple shots were fired into the victim, including after he had fallen. (Tr. 270-273). Rios also said Ms. Bell was sitting in the passenger seat of the car from which Appellant alighted. (Tr. 274-275, 287).

{¶ 4} Appellant's counsel began cross-examining Mr. Rios. (Tr. 277). Counsel raised some inconsistencies in his testimony as compared to his statement to police. Rios watched his video statement, and cross-examination continued. Counsel then paraphrased an answer given by Rios in the video statement and invited the witness, "correct me if I'm wrong." Responding to the invitation, Mr. Rios added the part of his answer he believed counsel was omitting. (Tr. 293). Counsel then repeated his statement in question form, which Rios answered and again added the omitted part of his statement: "Yeah, I said he was about my height". At this point, counsel admonished the witness, "Once again I'm asking the questions." The court then interjected, "Excuse me. What did I tell you? Do you want the witness instructed?" Counsel replied, "Judge, you're right. I apologize." (Tr. 294).

{¶ 5} The court instructed the witness to just answer the question asked. The witness then repeatedly voiced he had nothing more to say. When counsel said the witness should be instructed to answer or face the consequences, the witness said he was already facing 15 years. (Tr. 295). The court then allowed the defense to play for the jury the video of the witness's statement to police. Rios was then brought back to the stand. The court noted each side had the right to ask questions and added, "They don't have a right to ask you, to keep asking you the same question over and over." Rios responded, "Well, that's how I feel." (Tr. 300). The witness insisted he had "no more to tell" and was not answering any more questions. (Tr. 301-303). He swore at Appellant's attorney using a disturbing and strange suggestion. (Tr. 302). The court committed the witness to jail for contempt until he answered the questions.

{¶ 6} Defense counsel moved to strike the testimony of Rios in its entirety and to instruct the jury to disregard his entire presence at trial. Counsel said a mistrial was required if the motion to strike was not granted. (Tr. 305). Counsel for co-defendant Bell then attempted to question Rios, but he would not respond. (Tr. 308-309). The court contemplated having the witness meet with an attorney or his federal public defender, but the defense objected. (Tr. 315-317, 320-321). Once again, the witness was brought to the stand, and he indicated he was not willing to answer questions. (Tr. 327). The court recessed for over 1.5 hours. (Tr. 328).

{¶ 7} When the case resumed, the motion to strike was addressed. Appellant's attorney indicated the witness stopped participating before he completed cross-examination and thus Appellant's confrontation rights were violated. (Tr. 329). The court found Bell's right to confrontation was violated as her attorney was unable to engage in any cross-examination. (Tr. 330). The court noted Appellant's attorney engaged in cross-examination on various topics and asked counsel to explain what more he would have asked. (Tr. 331). Counsel set forth some examples. The state characterized the argument as counsel complaining "he wasn't allowed to ask enough times, and again and again; and badger this witness and make this witness more upset." (Tr. 339). The state noted "asked and answered" was a common court instruction to counsel during cross-examination. (Tr. 340).

{¶ 8} The court granted Appellant's motion to strike the testimony of the witness. (Tr. 343). The state then announced it reached an agreement with Bell calling for: the state to take a proffer from Bell; she would agree to testify truthfully in Appellant's case; and in return, the state would dismiss all charges against her with prejudice and release her immediately. (Tr. 343-345). The court discussed the agreement with Bell and accepted the dismissal of the case against her.

{¶ 9} Appellant's attorney moved for a mistrial. Noting the change in the evidence against his client, he emphasized the case would have been presented to the jury in a different fashion if this new evidence was available before trial. (Tr. 348). He said he had no idea what Bell's testimony would be because her prior statements to police denied any involvement and said Appellant was with her during the incident. (Tr. 348-349). When the court asked if the state wished to be heard on the mistrial motion, the state indicated it did not. The court then asked, "Are you expecting me to grant it?" (Tr. 349). The state replied the decision was expected because defense counsel did not yet view Bell's new statement. (Tr. 349-350).

{¶ 10} The trial court granted a mistrial on Appellant's motion, excused the jury, and remanded Appellant to custody pending further order. The court declined to address, at that time, the suggestion by the defense that double jeopardy barred retrial. (Tr. 350). The court memorialized the occurrences and the granting of a mistrial in a January 9, 2017 judgment entry.

{¶ 11} On January 23, 2017, Appellant filed a motion to dismiss on double-jeopardy grounds. He suggested the state's failure to prepare Rios for trial resulted in the witness's refusal to participate, alleging this was foreseeable. He said he had no choice but to seek a mistrial due to the co-defendant becoming a key witness mid-trial without prior notice. Appellant said the state should have sought Bell's testimony prior to trial rather than during it. He claimed the exception to the retrial rule applied because his mistrial motion was precipitated by prosecutorial misconduct intentionally calculated to cause a mistrial.

{¶ 12} The state responded it was surprised by the witness's reaction at trial and did not cause it, suggesting defense counsel may have caused the reaction by "badgering" the witness. The state urged there was no intentional act of deception or intent to do anything besides present available testimony. The state noted it entered a deal with "the non-shooter" after the eyewitness refused to continue with cross-examination and a motion to strike his entire testimony was under consideration. In writing, both sides waived a hearing on the motion to dismiss.

{¶ 13} On February 3, 2017, the trial court denied Appellant's motion to dismiss. The court described the situation as "an unusual set of circumstances that developed during trial." The court did not agree with the characterization of defense counsel's cross-examination as "badgering the witness." The court found there was no prosecutorial conduct amounting to an intentional act of deception and the state did not goad the defendant into moving for mistrial. Appellant filed a timely appeal. "[T]he denial of a motion to dismiss on double-jeopardy grounds is a final, appealable order. State v. Anderson , 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26.

ASSIGNMENT OF ERROR: DOUBLE JEOPARDY

{¶ 14} Appellant's sole assignment of error provides:

"Denial of the Appellant's motion to dismiss violated his protections pursuant to the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution as applied by the Fourteenth Amendment, and Article I, Section 10 of the Ohio Constitution."

{¶ 15} Appellant states Rios was the only eyewitness and the state's case hinged on his testimony. He complains the state entered a deal with Bell only after realizing they no longer had a case. He notes his attorney could not properly continue with the trial upon learning the co-defendant would "get up from her table in the middle of trial and move to the State's table" with the content of her new statement unknown. He was therefore forced to seek a mistrial. Appellant emphasizes how the state acknowledged it "expected" a mistrial to be granted. Appellant says his opportunity to receive an acquittal at this trial was impaired (and the prosecutor thus gained an advantage at this trial), contending if the state did not offer the deal to Bell, the trial would have continued and he would have been acquitted. He complains the state goaded him to seek a mistrial by offering Bell a deal mid-trial and concludes the offer constituted prosecutorial misconduct because the state knew it would necessitate the discontinuation of trial.

{¶ 16} The Fifth Amendment to the United States Constitution, applicable to the states via the Fourteenth Amendment, provides in pertinent part: "No person shall * * * be subject for the same offence to be twice put in jeopardy of life or limb." Similarly, Ohio's Constitution at Section 10 of Article I states: "No person shall be twice put in jeopardy for the same offense." As the protections afforded by these two double jeopardy clauses are "coextensive," the same analysis applies to double jeopardy claims brought under either constitution. State v. Brewer , 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14.

{¶ 17} The Double Jeopardy Clause protects a criminal defendant from repeated prosecutions for the same offense. State v. Loza , 71 Ohio St.3d 61, 71, 641 N.E.2d 1082 (1994), citing Oregon v. Kennedy , 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). However, the Double Jeopardy Clause does not bar a retrial when a defendant's motion for a mistrial is granted. Loza , 71 Ohio St.3d at 71, 641 N.E.2d 1082, citing Kennedy , 456 U.S. at 673, 102 S.Ct. 2083. There is a "narrow exception" where the defendant's motion for a mistrial "is precipitated by prosecutorial misconduct that was intentionally calculated to cause or invite a mistrial." Loza , 71 Ohio St.3d at 71, 641 N.E.2d 1082, citing Kennedy , 456 U.S. at 678-679, 102 S.Ct. 2083.

{¶ 18} To invoke the exception, there must be prosecutorial misconduct accompanied by prosecutorial intent. Kennedy , 456 U.S. at 675-676, 102 S.Ct. 2083 ("Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause."). "Only where the prosecutorial conduct in question is intended to 'goad' the defendant into moving for a mistrial may defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Loza , 71 Ohio St.3d at 71, 641 N.E.2d 1082, quoting Kennedy , 456 U.S. at 676, 102 S.Ct. 2083. As the state points out, a retrial is not barred on double jeopardy grounds where the state's mere negligence, rather than intentional misconduct, required the trial court to grant a mistrial on a defense motion. State v. Wood , 114 Ohio App.3d 395, 400, 683 N.E.2d 354 (10th Dist.1996), citing United States v. Dinitz , 424 U.S. 600, 607,611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (where circumstances develop not attributable to prosecutorial misconduct, the defendant's motion for mistrial ordinarily removes any barrier to re-prosecution, even if the motion is necessitated by prosecutorial error).

{¶ 19} In Loza , the state failed to disclose a chemical analysis report until the morning of the last day of trial because the prosecution was not aware of it until that time. The Supreme Court found no indication the state engaged in an intentional act of deception or intentionally withheld exculpatory evidence. Loza , 71 Ohio St.3d at 72, 641 N.E.2d 1082. The concern was not whether (at the time of disclosure) the state expected the new report would require the defense to seek a mistrial. The concern was not whether the state intentionally disclosed the report when it was discovered but was whether the state intentionally withheld the report in order to goad a mistrial.

{¶ 20} The state's expectation in a certain case may be a consideration in determining the state's intent. See, e.g., State v. Greene , 7th Dist. No. 02 CA 122, 2005-Ohio-4240, 2005 WL 1953088, ¶ 24 (noting a concurring justice suggested some factors which could be relevant), citing Kennedy , 456 U.S. at 680, 102 S.Ct. 2083 (Powell, J., concurring). Nevertheless, when the co-defendant presents herself to the state with an important and previously-unknown story after the joint trial commenced, the state's disclosure of the situation and dismissal of the co-defendant's charges need not be categorized as intentionally calculated to cause a mistrial merely because an attorney in this situation would expect a trial court to grant a mistrial request by the defense. See Greene , 7th Dist. No. 02 CA 122 at ¶ 4-5 (finding no intentional conduct by the state where a witness who appeared for trial brought with her a new witness, who was previously mentioned to the prosecution but unnamed). See also United States v. Papajohn , 848 F.Supp. 334, 339-340 (E.D.N.Y.1994) (rejecting a defendant's claim that the prosecutor intentionally goaded a mistrial by insisting on going forward with new evidence which clearly left defense counsel with no choice but to request a mistrial). What ultimately matters is whether the defendant's mistrial request was precipitated by prosecutorial misconduct intentionally calculated to provoke a mistrial. Loza , 71 Ohio St.3d at 71, 641 N.E.2d 1082, citing Kennedy , 456 U.S. at 678-679, 102 S.Ct. 2083.

{¶ 21} Here, the initial situation faced at trial was a key witness's refusal to continue answering questions during cross-examination by Appellant's attorney. This was not a foreseeable situation. In fact, the witness testified on direct examination from pages 266-277 of the transcript. He also testified on cross-examination by Appellant's counsel, encompassing pages 277-294 of the transcript. Bell's attorney was unable to question the witness at all. His refusal to participate further in the trial had nothing to do with the state's conduct. In addition, the state protested Appellant's motion to strike the eyewitness's testimony on the grounds that Appellant had sufficient opportunity to cross-examine the witness and this questioning prompted the witness's extreme response. (A motion to strike by Bell was more difficult to protest.) In discussing a way to encourage the witness to resume his participation in the trial, Appellant objected to any attempt to inform the witness that his testimony might be eliminated from the trial if he refused to continue with cross-examination or that he was a key witness in the case of his cousin's murder.

{¶ 22} Appellant complains the state did not offer his co-defendant this deal prior to trial, suggesting mid-trial is too late to deal with co-defendants. There is no indication Bell would have turned against her boyfriend prior to trial. According to defense arguments, she provided Appellant with an alibi in two statements to police. The state had less incentive to accept a deal from her or offer her a deal prior to trial. Considering the contextual evidence collected before trial and Bell's provision of an alibi for Appellant, the state believed Bell instructed her new boyfriend (Appellant) to shoot her former boyfriend (the victim). During trial, however, the state was faced with the situation of Bell being unable to confront her accuser and the defense moving to strike this key witness's testimony in full.

{¶ 23} The trial court concluded the state engaged in no act amounting to an intentional act of deception and the state did not goad Appellant into moving for a mistrial. Entering the deal with the co-defendant did not involve prosecutorial misconduct. The prosecution did not have a statement from Bell incriminating Appellant prior to trial. Rather, Bell had given statements protecting Appellant and herself. The state was provided a new statement by Bell at trial (with conditions). As this new statement did not previously exist, the state did not fail to disclose evidence (let alone intentionally withhold evidence). The prosecutor was merely accepting and disclosing new evidence and new circumstances presented to the prosecution mid-trial; there was no indication of bad faith. See, e.g., State v. Hill , 1st Dist. No. C-971098, 1999 WL 79050 (Feb. 19, 1999) (rejecting a defendant's claim that the prosecutor deliberately goaded the defense into requesting a mistrial because the prosecutor insisted on using new, previously undiscovered evidence). See also Greene , 7th Dist. No. 02 CA 122 (named witness appeared to testify at trial and brought with her another previously-unnamed witness).

{¶ 24} Moreover, the trial court could properly conclude the prosecutor's intent was not to goad the defendant into moving for a mistrial. Obviously, there is a prosecutorial motive to introduce incriminating evidence against a defendant. This prosecutorial motive did not equal an intent to create error in order to force a new trial under the circumstances of this case. The intent by the prosecutor was to convict the defendant with the co-defendant's testimony. The state did not gain material advantage from the mistrial itself. For instance, the state could have proceeded through the in-progress trial with Bell's case dismissed and Bell as the state's witness. However, because this situation would negatively affect Appellant's defense, Appellant asked for and was granted a mistrial. In fact, Appellant had asked for the declaration of a mistrial if the trial court refused to grant Appellant's motion to strike the eyewitness's testimony, and this was before there was any indication Bell would strike a deal with the prosecution. (Tr. 305).

{¶ 25} Notably, the state was still presenting its case-in-chief. In addition, although Bell was not on the state's witness list, she was a jointly indicted co-defendant. Appellant therefore knew of her status as a potential witness. She could have testified in her own defense and incriminated Appellant.

{¶ 26} In sum, this court concludes prosecutorial misconduct is lacking and the conduct at issue was not performed with intent to precipitate a mistrial. Consequently, retrial is not barred under double jeopardy principles. In accordance, the trial court's judgment is affirmed.

Donofrio, J., concurs.

Waite, J., concurs.

      The Supreme Court of Indiana upheld a decision finding no double jeopardy violation on the grounds that the prosecutor's plea deal with the co-defendant during the defendant's trial was performed in order to convict the defendant, not to goad him into moving for a mistrial. Butler v. State , 724 N.E.2d 600, 604 (Ind.2000) (even where mid-trial negotiations were a revival of prior discussions). See also State v. Dickens , 187 Ariz. 1, 12, 926 P.2d 468, 479 (1996) (Arizona Supreme Court found the state's entry into a plea agreement with the co-defendant after the state rested in the defendant's case was not bad faith; where the trial court permitted the state to reopen its case).


source: Caselaw Access Project

author: CALLAHAN, Judge.

license: Public Domain

text:
    Darlene MESSER, Appellant v. SUMMA HEALTH SYSTEM, Appellee
    No. 28470
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: January 31, 2018
    MICHAEL T. CONWAY, Attorney at Law, for Appellant.
    JAMES D. KUREK, Attorney at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Appellant, Darlene Messer, appeals the judgment entered in favor of Appellee, Summa Health System ("Summa"), in the Summit County Court of Common Pleas. For the reasons set forth below, this Court affirms.

I.

{¶ 2} Summa hired Ms. Messer on June 29, 2015 as a special procedures technologist in the interventional radiology department at its Barberton Hospital facility. In this position, Ms. Messer assisted doctors and others on medical procedures involving the veins and arteries of patients. Ms. Messer was employed for approximately one month before being terminated.

{¶ 3} Upon being hired, Ms. Messer received Summa's employee handbook. Contained within the handbook was a provision on probationary employment which permitted Summa to terminate an employee within the first 90 days of employment without notice.

{¶ 4} At the time of Ms. Messer's employment, Summa had a policy requiring all technicians in the interventional radiology department to change in and out of hospital-issued scrubs at the beginning and end of the shift, either in the unisex locker room or in the bathroom located inside the locker room. Doctors and nurses also used the unisex locker room, but had different policies regarding scrubs. Both the locker room and its bathroom could be locked. Ms. Messer did not agree, nor comply with the changing policy. She wore her own scrubs instead of the hospital-issued scrubs. She wore the scrubs home at the end of her shift instead of changing into street clothes. When she did change her clothes, she would use the public restroom instead of the unisex locker room or its bathroom.

{¶ 5} Ms. Messer claims that on one occasion, she walked in on a male employee who was changing in the unisex locker room. Ms. Messer further claims she reported this incident to three of her co-workers and to team leader L.M., but these verbal reports were unconfirmed. Ms. Messer did not file a written report.

{¶ 6} After the first incident, Ms. Messer claims to have stopped using the unisex locker room. Yet, according to Ms. Messer, a few days later she was changing in the locker room when someone began to walk-in. She immediately shouted for the person to leave and he/she did. Ms. Messer never saw the person and, thus, does not know if it was a male or female. Again, Ms. Messer claims to have reported this second incident to two of her co-workers and to team leader L.M., yet these verbal reports are also unconfirmed. Ms. Messer also did not file a written report for the second incident.

{¶ 7} Sometime during her one-month employment, Ms. Messer's co-worker K.T., team leader L.M., and supervisor S.B., all met with her and addressed the fact that her job performance and knowledge did not correspond to the skills and background she had listed in her resume. Shortly thereafter, Ms. Messer was counseled twice by team leader L.M. about wearing the hospital-issued scrubs, wearing personal scrubs home, and not using the public restroom to change clothes.

{¶ 8} As to her resume, Summa claims it discovered after Ms. Messer was hired that she had not disclosed her previous employment with Akron General Medical Center. During the interview, supervisor S.B. took notes on Ms. Messer's resume. The handwritten notes indicate "medical issues-temp position[,] interventional cath[.,] St[.] Vincent vasc[.,], UH PT currently." Ms. Messer faults S.B. for not asking follow-up questions regarding who the employer was for the temporary position. Supervisor S.B.'s expectation was that Ms. Messer's resume would include all of her employment history, relevant and non-relevant to the posted position.

{¶ 9} Ms. Messer testified that she did not include the Akron General Medical Center information because it was a "term position" and averred that she "tailor[ed] the experience in the resume to meet the posted requirements for the job [she was] seeking." Despite her assertion that the resume was "tailor[ed]" for the interventional vascular technologist position at Summa, the resume included a position at W.F. Hann and Sons where Ms. Messer worked as an "Accounting Administrator" and "[h]andled all clerical and accounting functions."

{¶ 10} On July 28, 2015, the day before Ms. Messer's termination, she requested permission from supervisor S.B. to leave work early. S.B. asked Ms. Messer how many of the required HealthStream courses she still needed to complete. Ms. Messer indicated that she only had two courses that needed to be completed and was granted permission to leave early based on her representation. After Ms. Messer had left work, S.B. learned from the education department that Ms. Messer, in fact, had five courses remaining. Ms. Messer claimed that she had answered truthfully because she had watched a couple of the courses, but deferred taking the tests until the next day, which she did. In Ms. Messer's opinion, watching the courses was the same as completing the courses because the tests only took "three minutes to do." However, S.B. viewed Ms. Messer's representation to be false.

{¶ 11} On that same day, Ms. Messer was involved in a procedure that resulted in a hematoma to a patient. Summa contends the injury to the patient was a result of a mistake made by Ms. Messer during the procedure. Ms. Messer asserts the mistake was not her fault, but the fault of the other medical personnel because they did not provide her with the necessary equipment.

{¶ 12} The following day, Ms. Messer met with team leader L.M. and supervisor S.B. for an exit interview. During this meeting, S.B. advised Ms. Messer that her employment was being terminated within the 90-day probationary period. The reasons for her termination were recorded on the Summa New Employee/Internal Transfer Probationary Evaluation Form ("Termination Form"). Both Ms. Messer and supervisor S.B. signed the Termination Form.

{¶ 13} In response to her termination, Ms. Messer filed a complaint alleging gender discrimination under R.C. 4112.02(A) based on sexual harassment, retaliatory discrimination under R.C. 4112.02(I), and aiding, abetting, inciting, compelling, or coercing an unlawful discriminatory act under R.C. 4112.02(J). Summa filed a motion for summary judgment. The trial court granted Summa's motion for summary judgment on all three claims. Ms. Messer timely appeals this judgment.

{¶ 14} Contrary to App.R. 12(A)(2) and App.R. 16(A), Ms. Messer has asserted three assignments of error and argued them jointly because, in her view "[a]ll [of the] [a]ssignments of [e]rror are [b]ased upon a common fact and law argument." While Ms. Messer is essentially arguing the trial court erred in granting summary judgment in favor of Summa in each assignment of error, the facts and law are not common because there are three separate causes of action and there are procedural arguments being asserted. This Court agrees with Summa that Ms. Messer's improper briefing method has "present[ed] a convoluted legal analysis." For ease of discussion, this Court will reorder and address the assignments of error individually.

II.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY CREDITING [SUMMA'S] CONTRADICTED AND OPINION EDITED VERSION OF [THE] FACTS ON [THE] MOTION FOR SUMMARY JUDGMENT.

{¶ 15} In her second assignment of error, Ms. Messer argues that the trial court erred by rejecting her affidavit and by failing to consider the deposition transcripts of the Summa employees that she filed and, thereby, prejudiced her.

Ms. Messer's Affidavit

{¶ 16} Ms. Messer asserted that the standard of review for all of her assignments of error is de novo. She is incorrect. In the second assignment of error, Ms. Messer challenges the trial court's determination that her affidavit contradicted her deposition testimony without any explanation and, thus, did not consider the affidavit. A trial court's decision whether to strike an affidavit is reviewed under an abuse-of-discretion standard. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994). It is also an abuse of discretion to strike the entire affidavit when there are portions that are properly before the court. See Wesley v. Walraven , 4th Dist. Washington No. 12CA18, 2013-Ohio-473, 2013 WL 544053, ¶ 27, quoting Wall v. Firelands Radiology , 106 Ohio App.3d 313, 335, 666 N.E.2d 235 (6th Dist.1995). "A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by evidence, or grossly unsound." (Citations and quotation marks omitted.) Tustin v. Tustin , 9th Dist. Summit No. 27164, 2015-Ohio-3454, 2015 WL 5047125, ¶ 21.

{¶ 17} Ms. Messer argues that the trial court improperly disregarded her entire affidavit. While the trial court only specifically addressed an alleged discrepancy between Ms. Messer's deposition testimony and paragraph 5 of her affidavit, it generally concluded that "[s]he ha[d] merely asserted bald allegations by way of her contradictory affidavit" and would "not consider the affidavit or find that it creates a genuine issue of material fact where these matters [were] concerned." Because the trial court struck Ms. Messer's entire affidavit, this Court will review the propriety of that action before addressing the merits of the motion for summary judgment.

{¶ 18} "An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment."

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, paragraph three of the syllabus; see Craddock v. Flood Co. , 9th Dist. Summit No. 23882, 2008-Ohio-112, 2008 WL 142443, ¶ 15. In that instance, the trial court must engage in a two-part analysis of the inconsistent affidavit. Craddock at ¶ 15. First, the trial court "must determine whether the statements in the affidavit contradict or merely supplement the affiant's earlier testimony." Id. Second, the trial court must decide whether the affiant has presented "a sufficient explanation for the inconsistency." Id.

{¶ 19} Here, the trial court based its decision not to consider Ms. Messer's affidavit solely on the contents of paragraph 5, which stated as follows:

While I was employed at Summa [ ], I was required to use a common access, unisex locker room by my supervisor [L.M.] and her supervisor [S.B.] to change my clothes in before starting my work shift and afterwards. I objected and refused to use the room as I am uncomfortable, offended[,] and embarrassed when I am caught in a state of undress by total strangers who are men while changing my clothes and I am put into a position where I have to walk in on others[,] including men[,] while they are changing clothes when I have to use the unisex locker room in issue.

The trial court interpreted this paragraph to mean that Ms. Messer "was caught half-dressed on multiple occasions and that there were multiple times when she walked in on males while they were changing." The trial court explained that Ms. Messer's deposition testimony, however, only identified two incidents. The trial court adopted Summa's rationale that Ms. Messer's affidavit indicated multiple incidents and this contradicted her deposition testimony of two incidents.

{¶ 20} Ms. Messer argues the word "multiple" is not in her affidavit and thus the trial court erred in interpreting her affidavit to say multiple incidents. While this Court agrees that "multiple" does not appear in her affidavit, the trial court's interpretation of paragraph 5 of the affidavit as describing "multiple" incidents is proper. "[M]ultiple" is defined as "more than one." The Merriam-Webster Dictionary 325 (New Ed.2005). The affidavit describes two different scenarios, thus it describes multiple incidents. Similarly, Ms. Messer testified to two different incidents, which also equates to multiple incidents. Thus, Ms. Messer's affidavit is consistent with her deposition testimony. Because paragraph 5 of the affidavit did not conflict with Ms. Messer's deposition testimony, the trial court erred in not considering this paragraph of the affidavit.

{¶ 21} Upon review of an affidavit, a trial court may strike only the portion of the affidavit that is inadmissible. See Wesley , 2013-Ohio-473, 2013 WL 544053, at ¶ 27. Here, the trial court rejected the entire affidavit as containing only "bald allegations" that were "contradictory" to her deposition testimony. There was no additional analysis as to how the remaining paragraphs of the affidavit were contradictory to the deposition testimony. Accordingly, the trial court erred in not considering the entire affidavit based solely on its analysis that paragraph 5 of the affidavit was inadmissible. See Wesley at ¶ 27.

{¶ 22} While Ms. Messer has shown that the trial court erred in striking her entire affidavit, she has failed to support her claim of prejudice resulting from that error. The appellant bears the burden of affirmatively demonstrating the error on appeal and substantiating his or her arguments in support. App.R. 16(A)(7) ; Loc.R. 7(B)(7). "Claimed error alone may not support reversal; the party assigning error must demonstrate prejudice resulting therefrom." Cincinnati Ins. Co. v. Thompson & Ward Leasing Co. , 158 Ohio App.3d 369, 2004-Ohio-3972, 815 N.E.2d 1126, ¶ 19 (10th Dist.), citing Smith v. Flesher , 12 Ohio St.2d. 107, 233 N.E.2d 137 (1967), paragraph one of the syllabus.

{¶ 23} Further, the statements put forth by Ms. Messer in her affidavit were also contained in the deposition transcripts. Therefore, Ms. Messer has failed to show that the erroneous exclusion of the cumulative information contained within her affidavit affected the trial court's decision to enter judgment in Summa's favor. Consequently, the erroneous exclusion of Ms. Messer's affidavit did not affect the substantial rights of the parties and, thus, constituted harmless error that this Court must disregard. See Civ.R. 61.

Deposition Transcripts

{¶ 24} Ms. Messer argues that the trial court did not consider any of the four depositions that she submitted as evidence to establish the existence of a genuine issue of material fact. " '[A] trial court's ruling on the use of the deposition of a witness is reviewed under an abuse-of-discretion standard.' " Clinton v. Faurecia Exhaust Sys. , 2d Dist. Miami No. 2012-CA-1, 2012-Ohio-4618, 2012 WL 4762021, ¶ 26, quoting Bishop v. Admr., Bur. of Workers' Comp. , 146 Ohio App.3d 772, 787, 768 N.E.2d 684 (10th Dist.2001).

{¶ 25} Ms. Messer's argument is wholly without merit. The trial court set forth seven instances in its judgment entry of "uncontroverted evidence that [Ms. Messer] was terminated * * * for reasons unrelated to any of her claims." The trial court indicated the source for each of the seven points. While the bulk of the support for the trial court's decision came from Ms. Messer's deposition, the trial court also relied upon the depositions of human resource representative E.H, team leader L.M., and supervisor S.B. These three depositions were produced by Ms. Messer in opposition to Summa's summary judgment motion. Thus, contrary to Ms. Messer's position, the trial court did consider the deposition transcripts she submitted.

{¶ 26} Ms. Messer also argues that Summa's conduct in submitting only a partial transcript of her testimony amounted to "severe editing of the record" and she avers that she was prejudiced by the "absence [of] the full context of [her] deposition answers." (Emphasis deleted.) Ms. Messer overlooks the fact that she could have remedied any prejudice by filing a complete copy of the transcript herself. Moreover, Ms. Messer does not provide this Court with any case law or rule to support her position that the entire transcript should be filed. "An appellant bears the burden of formulating an argument on appeal and supporting that argument with citations to the record and to legal authority." State v. Watson , 9th Dist. Summit No. 24232, 2009-Ohio-330, 2009 WL 187885, ¶ 5, citing App.R. 16(A)(7). Thus, pursuant to App.R. 16(A)(7), this Court declines to address this argument.

{¶ 27} Ms. Messer's second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY GRANTING [SUMMA'S] MOTION FOR SUMMARY JUDGMENT ON ALL CAUSES OF ACTION IN THE CASE SUB JUDICE.

{¶ 28} In her first assignment of error, Ms. Messer asserts that the trial court erred in granting summary judgment as to all of her claims. This Court disagrees.

Summary Judgment Standard

{¶ 29} Appellate courts consider an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This Court uses the same standard that the trial court applies under Civ.R. 56(C), viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. See Viock v. Stowe-Woodward Co. , 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983). Accordingly, this Court stands in the shoes of the trial court and conducts an independent review of the record.

{¶ 30} Summary judgment is proper under Civ.R. 56 when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-moving party. Civ.R. 56(C) ; Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 31} Summary judgment consists of a burden-shifting framework. The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the non-moving party's case. Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. at 292-293, 662 N.E.2d 264. Once the moving party satisfies this burden, the non-moving party has a reciprocal burden to "set forth specific facts showing that there is a genuine issue for trial." Id. at 293, 662 N.E.2d 264. The non-moving party may not rest upon the mere allegations or denials in his pleadings, but instead must submit evidence as outlined in Civ.R. 56(C). Id. at 293, 662 N.E.2d 264 ; Civ.R. 56(E). Additionally, expressions of speculation or assumptions in deposition testimony and affidavits are insufficient to sustain the non-movant's burden. See Dailey v. Mayo Family Ltd. Partnership , 115 Ohio App.3d 112, 117, 684 N.E.2d 746 (7th Dist.1996).

Gender Discrimination Based on Sexual Harassment

{¶ 32} The parties agree that Ms. Messer is asserting a claim for gender discrimination arising out of sexual harassment in a hostile work environment and that Hampel v. Food Ingredients Specialties , 89 Ohio St.3d 169, 729 N.E.2d 726 (2000), sets forth the applicable test. Ms. Messer argues that there are genuine issues of material fact as to this cause of action. This Court disagrees.

{¶ 33} R.C. 4112.02(A) makes it an unlawful discriminatory practice "[f]or any employer, because of the * * * sex * * * of any person, * * * to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." The Ohio Supreme Court has "determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. , 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981).

{¶ 34} Further, the Ohio Supreme Court has held that under R.C. 4112.02(A) a plaintiff can establish discrimination " 'because of * * * sex' " under one of two sexual harassment theories: " 'quid pro quo' harassment" or " 'hostile environment'

harassment." Hampel at paragraph one of the syllabus. " '[H]ostile environment' harassment," unlike " 'quid pro quo' harassment," does "not affect[ ] economic benefits, [but instead] has the purpose or effect of creating a hostile or abusive working environment." Id. To sustain a hostile work environment sexual harassment claim, the plaintiff must prove all of the following elements:

(1) that the harassment was unwelcome,
(2) that the harassment was based on sex,
(3) that the harassing conduct was sufficiently severe or pervasive to affect "terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment," and
(4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

Hampel at paragraph two of the syllabus. Summa's summary judgment motion addressed the second and third prongs.

Harassment based on sex-causation element

{¶ 35} An essential requirement in a sexual harassment claim is "[h]arassment 'because of * * * sex.' " Hampel at 178, 729 N.E.2d 726. Sexual harassment can be based upon the gender of a person or behaviors associated with sexual gratification. Id. Thus, sexual harassment can exist when the abusive actions are void of any sexual element but directed to an employee based on the individual's gender. Id. ; see Oncale v. Sundowner Offshore Servs. , 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). A female plaintiff must show that she was treated differently or with greater hostility because she is a woman. See Lack v. Wal-Mart Stores, Inc. , 240 F.3d 255, 261 (4th Cir.2001). Thus, Ms. Messer must show that, but for the fact of her gender, she would not have been the object of harassment. See Hampel at 178, 729 N.E.2d 726 ; Oncale at 81, 118 S.Ct. 998 (A plaintiff must prove the conduct "actually constituted 'discrimination * * * because of * * * sex.' "). (Emphasis deleted.)

{¶ 36} Ms. Messer argued that Summa required, as a condition of her employment, that she change from her street clothes into hospital issued scrubs in a unisex locker room. Ms. Messer was "offended" because she viewed this policy as "a violation of her personal privacy based upon gender." According to Ms. Messer, the mandatory use of the unisex locker room was abusive conduct creating a hostile work environment. Ms. Messer argues that the conduct was abusive because women have a greater expectation of privacy in their bodies than men and, thus, the conduct was directed towards her based on her being a woman.

{¶ 37} Ms. Messer's reliance on Livingwell, Inc. v. Pennsylvania Human Relations Comm. , 147 Pa.Commw. 116, 606 A.2d 1287 (1992), for the proposition that females have a heightened privacy interest in their bodies is misplaced. In Livingwell , a health fitness club was sued for violating the Pennsylvania Human Relations Act by prohibiting men from being customers or employees in their all-women facilities. Id. at 118, 606 A.2d 1287. Contrary to Ms. Messer's overriding theme, Livingwell does not stand for the proposition that women have a heightened sense or right to privacy over men. See id . at 128-129, 606 A.2d 1287. Livingwell addressed the issue of customer gender privacy as a defense and the requirement that the defendant show a factual basis for excluding males from its all-female facilities. Id. at 120-123, 606 A.2d 1287. The court's analysis in Livingwell has no application to the facts in this case.

{¶ 38} Ms. Messer also relied upon Washington v. White , 231 F.Supp.2d 71 (D.C.Dist.2002), for the proposition that "where the [p]laintiff complain[ed] his or her right of privacy was invaded" there was sexual harassment. In Washington , the plaintiff, a male custodial worker, complained that the female work leader entered the men's locker room, unannounced, five to ten times while the male employees were changing clothes and showering. Id. at 80. The female worker's actions were in contravention to the written policy prohibiting women in the men's locker room. Id. at 81. In response to the plaintiff's complaint, the female worker returned to the men's locker room and accosted the plaintiff. Id. at 80-81. The court found this was evidence creating a genuine issue of material fact regarding a hostile work environment. Id. at 81.

{¶ 39} Washington is distinguishable from the instant case because it involved a different expectation of privacy. The male plaintiff in Washington had an expectation of privacy because he was using a single sex locker room. See id. at 80. This case involves a unisex locker room, where both men and women are permitted and, in fact, are required to use the designated space for changing into hospital issued scrubs. Unlike Washington , the presence of the opposite sex in the locker room is not in violation of a policy. See id. at 81. Moreover, the unisex locker room allows an employee to protect his or her personal privacy interest because the door can be locked by any staff member who uses the room, as evidenced by team leader L.M.'s deposition testimony of an occasional line waiting to get inside the locker room.

{¶ 40} Summa argued in its summary judgment motion that Ms. Messer "cannot claim that she was singled-out based on her gender in being provided this locker room because all employees, male and female, were granted access to it." In her opposition to summary judgment, Ms. Messer found this argument to be "outrageous" and cited two cases, Bennett v. Corroon & Black Corp. , 845 F.2d 104 (5th Cir.1988) and Barbetta v. Chemlawn Servs. Corp. , 669 F.Supp. 569 (W.D.N.Y.1987), neither of which refuted Summa's argument.

{¶ 41} Bennett concerned sexually explicit drawings containing the plaintiff's name hanging in the men's public bathroom in the office building. Bennett at 105. Barbetta concerned evidence of pornography depicting naked females, vulgar comments to women, a requirement that females wear skirts or dresses so that a supervisor could look at their legs, and females receiving unwanted physical contact of a sexual nature by a male employee. Barbetta at 572-573. Both of these cases addressed sexually explicit conduct as opposed to gender neutral conduct. Accordingly, Bennett and Barbetta are inapplicable to the facts in this case.

{¶ 42} Ms. Messer concedes that a work "environment which is equally harsh for both men and women * * * does not constitute a hostile working environment under the civil rights statutes." Brennan v. Metro. Opera Assn. 192 F.3d 310, 318 (2d Cir.1999). Ms. Messer then argues for the first time on appeal the test and exceptions to the gender-neutral conduct defense. This argument is different from those contained in her opposition to summary judgment. "Arguments that were not raised in the trial court cannot be raised for the first time on appeal."

JPMorgan Chase Bank, N.A. v. Burden , 9th Dist. Summit No. 27104, 2014-Ohio-2746, 2014 WL 2918455, ¶ 12. Accordingly, this Court will not consider this portion of her argument.

{¶ 43} Ms. Messer testified that the locker room was used by both male and female employees and she averred that she felt "uncomfortable, offended[,] and embarrassed" when she saw a male changing his clothes in the locker room and when a male walked in on her changing her clothes. Ms. Messer testified that she was ordered by team leader L.M. to use the locker room to change in and out of the hospital scrubs. Supervisor S.B. and co-worker K.T. testified that Ms. Messer was able to use the bathroom located inside the locker room to change her clothes. Ms. Messer acknowledged that there is a bathroom with a lock on the door located inside the locker room. Additionally, team leader L.M. testified that there was a lock on the locker room door that anyone could operate.

{¶ 44} Ms. Messer has not provided any evidence to indicate that the mandatory use of the unisex locker room was motivated by Ms. Messer's gender. There was no testimony or other evidence as to how the mandatory use of the unisex locker room discriminated against Ms. Messer based on her gender. Instead, the testimony established that the locker room policy did not single out either gender as it applied to all medical personnel, male and female. See Oncale , 523 U.S. at 80, 118 S.Ct. 998, quoting Harris v. Forklift Sys. , 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (Ginsburg, J., concurring) (the critical issue is whether one sex is subject to more disadvantageous conditions than the other). Accordingly, Ms. Messer has failed to meet her Dresher burden of establishing the existence of a genuine issue of material fact as to the essential condition of a sexual harassment case, i.e., "[h]arassment 'because of * * * sex.' " See Hampel , 89 Ohio St.3d at 178, 729 N.E.2d 726.

{¶ 45} In light of this Court's analysis of the second element of a sexual harassment claim, the parties' arguments as to the other elements are moot. See App.R. 12(A)(1)(c). The trial court did not err in granting summary judgment as to the sexual harassment claim.

Retaliatory Discrimination

{¶ 46} R.C. 4112.02(I) defines retaliatory discrimination as

an unlawful discriminatory practice * * * [when] any person [ ] discriminate[s] in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under [R.C.] 4112.01 to 4112.07 [ ].

Federal case law regarding Title VII of the Civil Rights Act of 1964 generally applies to R.C. Chapter 4112 violations, including retaliatory discrimination claims. See Varner v. Goodyear Tire & Rubber Co. , 9th Dist. Summit No. 21901, 2004-Ohio-4946, 2004 WL 2244491, ¶ 10, citing Plumbers & Steamfitters Joint Apprenticeship Commt. , 66 Ohio St.2d at 196, 421 N.E.2d 128.

{¶ 47} An employee must first establish a prima facie case of retaliation by demonstrating each of the following elements:

(1) that she was engaged in a protected activity,
(2) that the employer knew of her participation in the activity,
(3) that she was subjected to adverse employment action, and
(4) that "there is a causal link between the protected activity and the adverse employment action."

Jaber v. FirstMerit Corp. , 2017-Ohio-277, 81 N.E.3d 879, ¶ 25, quoting Varner at ¶ 10, quoting Wade v. Knoxville Utils. Bd. , 259 F.3d 452, 463 (6th Cir.2001).

{¶ 48} If an employee establishes a prima facie case of retaliation, the burden then shifts to the employer to offer a legitimate, non-retaliatory business reason for its action. Greer-Burger v. Temesi , 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 14. This is simply a burden of production. Manofsky v. Goodyear Tire & Rubber Co. , 69 Ohio App.3d 663, 667, 591 N.E.2d 752 (9th Dist.1990). Once the employer satisfies this burden, then the plaintiff must demonstrate that the proffered reason for the adverse employment action was pretext. Greer-Burger at ¶ 14. If the employer proffers multiple reasons, the employee must rebut each one to survive summary judgment. Crawford v. City of Fairburn , 482 F.3d 1305, 1308 (11th Cir.2007).

{¶ 49} In its motion for summary judgment, Summa argued that Ms. Messer failed to establish a prima facie case of retaliation, and further argued that Ms. Messer failed to establish pretext. If Summa is correct in either respect, then the other issue and the related arguments are moot. See generally Williams v. Time Warner Cable , 9th Dist. Summit No. 18663, 1998 WL 332937, at *2-3 (June 24, 1998) (an employer may seek summary judgment on either basis in a discrimination case). This Court begins its analysis with Ms. Messer's prima facie case of retaliation because we find it to be dispositive. See App.R. 12(A)(1)(c).

Engaged in protected activity

{¶ 50} An employee engages in protected activity by opposing an unlawful discriminatory practice, "regardless of whether the conduct or policy * * * was, in fact, unlawful." See Robinson v. Quasar Energy Group LLC , 8th Dist. Cuyahoga No. 101062, 2014-Ohio-4218, 2014 WL 4748535, ¶ 20 ; Pintagro v. Sagamore Hills Twp. , 9th Dist. Summit No. 25697, 2012-Ohio-2284, 2012 WL 1867033, ¶ 13. In the employment context, an employee communicating her belief that the employer has engaged in discriminatory conduct constitutes protected activity. See Robinson at ¶ 19.

{¶ 51} Ms. Messer testified that she told team leader L.M. that she was uncomfortable changing in the unisex locker room because she "didn't want to see [a male's] butt and [she] didn't want [a male] seeing [hers]." Summa does not dispute that the content of such a complaint involves an allegation of discriminatory conduct. Instead, Summa disputes that Ms. Messer made such a complaint to L.M. Because of the parties' divergent testimony as to whether Ms. Messer voiced this complaint to L.M., there is a genuine issue of material fact as to the first element of retaliation, whether Ms. Messer engaged in protected activity.

Knowledge of protected activity

{¶ 52} "The decision[ ]maker's knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation." Frazier v. USF Holland, Inc. , 250 Fed.Appx. 142, 148 (6th Cir.2007). An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made. See Carney v Cleveland Hts.-Univ. Hts. City School Dist. , 143 Ohio App.3d 415, 430, 758 N.E.2d 234 (8th Dist.2001).

{¶ 53} In a summary judgment motion, the plaintiff can meet its burden regarding the employer's knowledge with either direct or circumstantial evidence. See Meyers v. Goodrich Corp. , 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261, 2011 WL 2568081, ¶ 22. Direct evidence of the employer's knowledge normally exists when the adverse action is taken by the same supervisor to whom the employee made a complaint. See Proffitt v. Metro. Govt. of Nashville & Davidson Cty ., 150 Fed.Appx 439, 442 (6th Cir.2005), quoting Mulhall v. Ashcroft , 287 F.3d 543, 552 (6th Cir.2002). In the absence of direct evidence, knowledge may be inferred from the record. Meyers at ¶ 22. Circumstantial evidence can support a reasonable inference if it is comprised of "specific facts" and not merely "conspiratorial theories," " 'flights of fancy, speculations, hunches, intuitions, or rumors.' " See Mulhall at 552, quoting Visser v. Packer Eng. Assocs., Inc. , 924 F.2d 655, 659 (7th Cir.1991).

{¶ 54} With regard to Ms. Messer's deposition testimony, Summa argued that her alleged complaint of sexual harassment to team leader L.M. was insufficient to show that Summa had knowledge of her protected activity. While Ms. Messer testified and averred in her affidavit that she complained many times to team leader L.M. that she was uncomfortable using the unisex locker room, a fact which L.M. denies, she did not testify or aver to having made this complaint to supervisor S.B. As to her co-workers, Ms. Messer testified that she told them about the two locker room incidents. However, she did not testify that she told her co-workers that the incidents made her feel uncomfortable about changing in the locker room.

{¶ 55} Supervisor S.B. testified that she completed the Termination Form and it was her decision to fire Ms. Messer. This is corroborated by team leader L.M.'s testimony that the Termination Form was not "[her] documentation," that she has never been in a supervisory role, and that her previous involvement in a discipline situation with another employee consisted of sitting in on the discipline and termination meetings.

{¶ 56} Further, supervisor S.B. testified, to repeated questioning, that she did not know that Ms. Messer "complained about having to use the unisex locker room, because she didn't like being walked in on. " S.B.'s testimony was that the reason Ms. Messer was using the public restroom in lieu of the locker room to change did not interest her, so she never discussed the issue with her.

{¶ 57} The record does not reflect that team leader L.M. told supervisor S.B. about Ms. Messer's complaint. As to co-worker K.T., she testified that her only discussion with supervisor S.B. was to tell her that Ms. Messer was wearing scrubs home. Upon review of the evidence, Ms. Messer has failed to demonstrate the existence of a genuine issue of material fact that someone other than supervisor S.B. made the decision to terminate Ms. Messer and that S.B. had direct knowledge of Ms. Messer's protected activity.

{¶ 58} Ms. Messer relies on circumstantial evidence to create an inference that supervisor S.B. had knowledge of Ms. Messer's protected activity. S.B. testified that shortly before Ms. Messer's termination, she learned from team leader L.M. that Ms. Messer was changing in the public restroom instead of the locker room. According to S.B., because she does not micromanage her staff, she deferred to team leader L.M. to counsel Ms. Messer on the prohibited use of the public restroom.

{¶ 59} Ms. Messer claims that the fact that supervisor S.B. "testified that [Ms. Messer] was told not to change in a public restroom [at the hospital] * * * leads us to infer [Ms. Messer] complained about having to change in the unisex locker room prior to her termination." (Emphasis deleted.) Ms. Messer is asking this Court to infer, first, that her conduct was a complaint and, second, that the substance of her complaint was that she was uncomfortable changing in the unisex locker room because she did not want to see males or have males see her changing. The record does not support either inference and is, therefore, insufficient to establish knowledge by supervisor S.B. of Ms. Messer's protected activity.

{¶ 60} While team leader L.M. brought the issue of changing in the public restroom to supervisor S.B.'s attention, in light of S.B.'s hands-off approach to management, the record only supports a finding that team leader L.M. was reporting a policy violation by Ms. Messer to S.B., and not that S.B. knew Ms. Messer complained about changing in the unisex locker room. Ms. Messer has failed to present any "specific facts" to support these inferences, and instead has improperly relied upon " 'speculations, hunches, [or] intuitions.' " See Mulhall , 287 F.3d at 552, quoting Visser , 924 F.2d at 659. Accordingly, Ms. Messer has failed to present evidence supporting the inference that supervisor S.B. knew of Ms. Messer's protected activity.

{¶ 61} In an attempt to infer knowledge upon supervisor S.B., Ms. Messer argues for the first time on appeal the " 'cat's paw' liability analysis." Ms. Messer asserts that "an employer who commits [an] adverse action that constitutes retaliation may be found liable even if it is not personally aware of the protected activity of the [p]laintiff if it is shown the adverse act was caused by higher management's reliance on information produced by a subordinate employee who had a motive to retaliate against the plaintiff." However, Ms. Messer did not advance this argument to the trial court and cannot now raise it on appeal in the first instance. Burden , 2014-Ohio-2746, 2014 WL 2918455, at ¶ 12. Accordingly, this Court will not consider this portion of her argument.

{¶ 62} Additionally, Ms. Messer's deposition testimony regarding the discussions during the exit interview does not create an inference of knowledge by supervisor S.B. Ms. Messer testified that, during the exit interview with team leader L.M. and supervisor S.B., she told them that "[changing in the locker room was] not something [she was] comfortable [ ] doing." Despite this general statement by Ms. Messer, supervisor S.B. did not inquire as to why Ms. Messer was uncomfortable, nor did Ms. Messer elaborate during the interview as to why she was uncomfortable. Based on Ms. Messer's limited testimony, in conjunction with supervisor S.B.'s testimony relative to the discussion during the exit interview, Ms. Messer has not presented any specific facts or evidence from which a reasonable jury could infer that supervisor S.B. knew of Ms. Messer's protected activity.

{¶ 63} Ms. Messer has not presented any direct evidence and the circumstantial evidence upon which she relies is speculative and does not support the inference that supervisor S.B. knew of Ms. Messer's protected activity when she was terminated. Accordingly, Ms. Messer has failed to meet her Dresher burden of establishing the existence of a genuine issue of material fact that Summa had knowledge of Ms. Messer's protected activity.

{¶ 64} In light of this Court's analysis of the second element of a retaliation claim, the parties' arguments as to the other elements are moot. See App.R. 12(A)(1)(c). The trial court did not err in granting summary judgment as to the retaliatory discrimination claim.

Aiding and Abetting an Unlawful Discriminatory Act Under R.C. 4112.02(J)

{¶ 65} Pursuant to R.C. 4112.02(J), the following conduct is another instance of an unlawful discriminatory practice:

For any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice.

{¶ 66} In its summary judgment motion, Summa presented a single argument as to this cause of action: because no unlawful discriminatory act was committed, Summa could not be liable under this statute. Ms. Messer responded that there was evidence creating a genuine issue of material fact as to unlawful discriminatory practices by Summa and that the "three women went out of their way to make sure [Ms. Messer] was terminated and the ground they picked, happened to be a violation of [R.C.] 4112.02(A) and (I)."

{¶ 67} As discussed above, Ms. Messer has failed to establish a genuine issue of material fact regarding her claims of gender discrimination arising from sexual harassment and retaliatory discrimination. Accordingly, there is no evidence regarding an unlawful discriminatory practice under R.C. 4112.02(A) - (I) and Summa is entitled to judgment as a matter of law on this cause of action. See Pittman v. Parillo , Lucas C.P. No. CI0201402890, 2016 Ohio Misc. LEXIS 5839, *42 (May 31, 2016), citing Woolf v. City of Streetsboro , N.D.Ohio No. 5:09 CV 1570, 2010 WL 4105550, *15 (Oct. 18, 2010) ("As plaintiff has not established the elements of her sexual discrimination and sexual harassment claims, her claim for aiding and abetting sexual harassment under Ohio law also fails."). The trial court did not err in granting summary judgment as to the aiding and abetting an unlawful discriminatory act claim.

{¶ 68} Summa argues in the alternative that summary judgment should be affirmed on this count because the three employees of Summa who allegedly colluded to get Ms. Messer's employment terminated are not named parties. First, this argument is moot because the trial court's summary judgment was not overturned. Second, Summa did not present this argument to the trial court and it is thereby forfeited. Burden , 2014-Ohio-2746, 2014 WL 2918455, at ¶ 12. ("Arguments that were not raised in the trial court cannot be raised for the first time on appeal.")

Conclusion

{¶ 69} When considering all of the evidence presented, Ms. Messer failed to meet her Dresher burden of establishing the existence of a genuine issue of material fact regarding each of her causes of action. After considering the foregoing arguments, the trial court did not err by granting summary judgment in favor of Summa as against Ms. Messer. Ms. Messer's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR BY IN EFFECT DISMISSING [MS. MESSER'S] OHIO R[.]C[.] 4112.02(J) CAUSE OF ACTION FINDING THAT [MS. MESSER'S] EMPLOYMENT TERMINATION WAS FOR REASONS UNRELATED TO "ANY OF HER CLAIMS."

{¶ 70} In the third assignment of error, Ms. Messer argues that the trial court erred in granting summary judgment to Summa on her third cause of action when it "summarily dismiss[ed] [the claim] without any discussion."

{¶ 71} Ms. Messer did not develop an argument, nor has she cited any legal authority in support of her position that the trial court erred by not providing its reasoning when it granted summary judgment in favor of Summa on her third cause of action. "An appellant bears the burden of formulating an argument on appeal and supporting that argument with citations to the record and to legal authority." Watson , 2009-Ohio-330, 2009 WL 187885, at ¶ 5, citing App.R. 16(A)(7). Where an appellant fails to cite to any law supporting her assignment of error, it is not this Court's duty to create an argument for her. See Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 WL 224934, *8 (May 6, 1998). ("If an argument exists that can support this assignment of error, it is not this court's duty to root it out."). Thus, pursuant to App.R. 16(A)(7), this Court declines to address this argument.

III.

{¶ 72} Ms. Messer's first and second assignments of error are overruled and this Court declines to address the third assignment of error. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

CARR, J.

CONCUR.

      Ms. Messer argues Summa failed to meet its initial burden on summary judgment as to this cause of action because it only made a conclusory statement and did not rely on any evidence. To the contrary, Summa met its initial burden because it specifically indicated that it was relying on the arguments and evidence previously discussed in its brief to support its position that "no discriminatory act was committed."


author: EILEEN T. GALLAGHER, J.: SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    STATE of Ohio, Plaintiff-Appellee v. Carlton Junior SHAW, Defendant-Appellant
    No. 105111
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 1, 2018
    Mark Stanton, Cuyahoga County Public Defender, BY: Cullen Sweeney, Assistant Public Defender, Courthouse Square, Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Andrea N. Isabella, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
    ON RECONSIDERATION

      The original decision in this appeal, State v. Shaw , 8th Dist. Cuyahoga No. 105111, 2017-Ohio-7404, 2017 WL 3822412, released August 31, 2017, is hereby vacated. This opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 22(C) ; see also S.Ct.Prac.R. 7.01.

   EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Carlton Junior Shaw, appeals his convictions and raises the following four assignments of error:

1. Carlton Shaw's conviction for tampering with evidence is not supported by legally sufficient evidence as required by state and federal due process.
2. The verdict form on Count 3 (discharge of a firearm on or near a prohibited premises) only supports a conviction for a misdemeanor of the fourth degree because the verdict form did not state the degree of the offense or include the aggravating element, as required by R.C. 2945.75.
3. The trial court erred in failing to instruct the jury on the lesser charge (misdemeanor version) of discharging a firearm on or near a prohibited premises.
4. Carlton Shaw was denied his right to the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when his attorney failed to ensure that the jury received all the necessary instructions.

{¶2} We find some merit to the appeal, affirm Shaw's tampering with evidence conviction and modify Shaw's discharging a firearm on or near a prohibited premises by reducing it from a third-degree felony to a first-degree misdemeanor.

I. Facts and Procedural History

{¶3} Shaw was charged with two counts of felonious assault, one count of tampering with evidence, and one count of discharging a firearm on or near a prohibited premises. One of the victims, Lavonte Hinchen, testified at trial that he has two children with Whitley Harris, who was living with Shaw at the time of the events giving rise to this case. Hinchen testified that although he shared joint custody of the children with Harris, Harris often refused to relinquish custody of the children to Hinchen for visitation in accordance with a joint custody order. Over time, the animosity between them had become hostile.

{¶4} Hinchen testified that he often tried to call Harris to schedule visitation, but she never answered his calls. According to Harris, Hinchen became increasingly aggressive to the point that she sought and obtained a temporary restraining order to prevent Hinchen from coming to her house. Hinchen, who alleges he was unaware of the temporary restraining order, asked his brother, Anthony Lee, to accompany him to pick up his children from Harris's home on December 20, 2015.

{¶5} Lee drove separately and met Hinchen at Harris's apartment, which was located inside a multifamily house. Hinchen knocked on the door, and Harris refused to allow him to take the children, claiming she had a protective order that prevented him from coming to her home. Lee suggested to Hinchen that he go to the police department and ask for assistance in enforcing the child custody order. Hinchen agreed and set off to the police station.

{¶6} Meanwhile, Harris exited the building and began speaking with Lee, with whom she had a better relationship. While they were talking, Shaw appeared "out of nowhere," stuck a gun in his face, and threatened "I'm about to body you." (Tr. 331.) Lee testified that Shaw was "highly agitated" and was "swaying side to side" with his finger on the gun's trigger. Harris told Shaw, "He is a man of God. He is a minister. * * * Don't shoot him." (Tr. 337.) Lee, who was a psycho-educational-juvenile therapist and an ordained clergyman, was trained to counsel juveniles with oppositional defiance disorder and PTSD. He calmly spoke to Shaw in an attempt to diffuse the situation. (Tr. 313.)

{¶7} Shaw began to regain composure, but Hinchen returned to the scene to see why Lee was not following him to the police station. When Shaw saw Hinchen, he became agitated again. Lee pushed Shaw behind the apartment building to remove him from Hinchen's sight. Shaw seemed to be listening to Lee, who was still trying to calm him down, but when Hinchen appeared from behind the building, Shaw "flared up" again. (Tr. 345.) Lee hugged Shaw to restrain him, but Shaw grabbed Lee's wrist, on which he had recently had surgery, and Lee recoiled in pain. Lee could not stop Shaw so he yelled to Hinchen to run. (Tr. 347.) According to Lee, Shaw pointed the pistol in Hinchen's direction and pulled the trigger. The gun misfired at first, but Shaw eventually fired three to four shots.

{¶8} Lee, who had a concealed carry permit, lifted his gun in self-defense but realized the slide on Shaw's gun was open, which meant that it was out of ammunition. Shaw "took off running," and Lee walked back to the front of the building where Harris was "crying hysterically" in the front yard. (Tr. 350.) Lee told Harris to secure the children inside and called 911. (Tr. 350.)

{¶9} Lee began driving to the nearest police station and happened upon a police cruiser on a nearby street. After Lee told the police what happened, they activated their lights and drove to Harris's apartment. Meanwhile, Hinchen called the police and reported that he had seen Shaw aim a gun at Lee's head. Harris also called the police to report that Hinchen was at her door in violation of the protection order. Soon there were ten police officers on the scene.

{¶10} Sgt. William Mokshefsky questioned Shaw at the scene. Shaw denied he had a gun or shot a gun. Yet, while police were detaining Shaw, other officers discovered his gun hidden in a wall in the basement of the apartment building. When Detective Arrif Shahid questioned Shaw the following day, Shaw admitted he owned a gun and that he fired it, but claimed he only fired a single warning shot into the ground.

{¶11} At trial, Shaw admitted he was angry and wanted to fight Hinchen. He also admitted that he possessed a gun when he exited the apartment and confronted Lee. Shaw explained that two weeks earlier, Hinchen aggressively confronted him and Harris at a McDonald's drive-thru. Hinchen pulled his car up next to Harris's car in the drive-thru. He knocked on the window and attempted to open the door to Harris's car. When the two cars were stopped at a red light at the end of the McDonald's driveway, Shaw exited Harris's car and approached Hinchen, who exited his car. Shaw testified that because he observed Hinchen open his trunk and reach for a firearm, he got back in Harris's car and they drove away.

{¶12} Shaw testified that he feared for his life when Hinchen came to Harris's apartment because of the incident at the McDonald's. Although he admitted that he wanted to fight Hinchen, he testified that he held his gun solely for self-defense and only fired a single warning shot. He never intended to shoot Lee or Hinchen.

{¶13} The jury acquitted Shaw of both counts of felonious assault but found him guilty of discharging a firearm on or near a prohibited premises and tampering with evidence. The court sentenced him to a three-year prison term on the firearm specifications and community control sanctions on the underlying offenses. (Tr. 889.) Shaw now appeals his convictions.

II. Law and Analysis

A. Tampering with Evidence

{¶14} In the first assignment of error, Shaw argues his tampering with evidence conviction is not supported by sufficient evidence.

{¶15} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶16} Shaw was convicted of tampering with evidence in violation of R.C. 2921.12(A)(1). R.C. 2921.12(A)(1) provides that "no person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]" Thus, to prove tampering with evidence, the state had to prove that the defendant (1) had knowledge that an official proceeding or investigation was in progress or likely to be instituted; and (2) altered, destroyed, concealed, or removed the potential evidence; (3) for the purpose of impairing the potential evidence's availability or value in such proceeding or investigation. State v. Straley , 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 11.

{¶17} " 'A person has knowledge of circumstances when the person is aware that such circumstances probably exist.' " Id. , quoting Black's Law Dictionary 1004 (10th Ed.2014). In determining whether the defendant acted knowingly or purposely, the jury may infer the defendant's state of mind from the surrounding circumstances. State v. Sharp , 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, 2016 WL 1600274, ¶ 19, citing State v. Rock , 3d Dist. Seneca No. 13-13-38, 2014-Ohio-1786, 2014 WL 1692470, ¶ 13. A person acts "purposely" when "it is his specific intention to cause a certain result." R.C. 2901.22(A).

{¶18} Shaw argues, citing State v. Barry , 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248, ¶ 22, that it could not be presumed that the police would investigate a shooting incident simply because he fired a gun. He also contends there is no actual evidence that he knew an investigation was likely to be instituted against him when he concealed the gun in a wall in the basement of Harris's apartment building. Indeed, Ohio law does not impute constructive knowledge of an impending investigation based solely on the commission of an offense. Barry at syllabus. "[T]he fact that an act was unmistakably a crime does not, by itself, establish that the accused knew of an investigation into that crime or that such investigation was likely to be instituted." Id.

{¶19} In Barry , the defendant concealed several grams of heroin wrapped in a condom in her vagina during a drive from Middletown, Ohio to Huntington, West Virginia. A state highway patrol officer stopped her vehicle after hearing its defective muffler and observing erratic driving. The officer smelled marijuana and searched the car but only found a bag containing marijuana residue. However, after speaking with Barry and her friends, the officer suspected that Barry's friends had given her contraband that she was hiding in her body. She later produced the condom containing the heroin in the presence of a female officer and was charged with trafficking in heroin, possession of heroin, conspiracy to traffic in drugs, and tampering with evidence. Id. at ¶ 8.

{¶20} Barry was subsequently convicted of tampering with evidence after admitting at trial (1) that she concealed the heroin so the police could not see it and (2) that she knew it was "an unmistakable crime" to possess heroin. However, on appeal Barry argued the trial court erred in giving the "unmistakable crime" instruction to the jury because it improperly created an irrebuttable presumption that she had knowledge of an investigation regardless of whether she could have anticipated it. In reversing Barry's conviction, the Ohio Supreme Court held that "merely establishing that the crime committed is an unmistakable crime is insufficient to prove that the accused knew at the time the evidence was altered, destroyed, concealed, or removed that an official proceeding or investigation into that crime was * * * likely to be instituted." Id. at ¶ 26.

{¶21} In reaching this conclusion, the court referred to its earlier decision in Straley , 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175. In that case, two narcotics detectives stopped Straley's car after observing it travel left of center. They suspected Straley of driving under the influence of alcohol, but when the search of her car revealed no contraband, the detectives decided not to arrest her. However, Straley needed to urinate while the officers were attempting to find her a safe ride home. An officer searched the area where she relieved herself and discovered a urine soaked cellophane baggie containing crack cocaine. Straley at ¶ 19.

{¶22} Straley subsequently pleaded no contest to drug trafficking and possession of cocaine, and a jury convicted her of tampering with evidence. In affirming the appellate court's decision reversing Straley's tampering with evidence conviction, the Ohio Supreme Court explained "[t]here is nothing in the record to suggest that the officers were conducting or likely to conduct an investigation into trafficking or possession of cocaine when Straley discarded the baggie." Id.

{¶23} Although both Straley and Barry concealed contraband, it was unlikely that an investigation into drug trafficking was going to be instituted against them at the time they hid the evidence. Unlike the facts of this case, there was nothing that would have drawn attention to their drug trafficking activity. Straley and Barry concealed the contraband before they knew they would actually encounter the police. Hiding the evidence was a preemptive measure as opposed to a reaction to a likely investigation of a recent criminal act. Shooting a gun in a residential neighborhood in broad daylight is an entirely different circumstance than those presented in Straley and Barry because it involves a loud disturbance that is likely to attract attention.

{¶24} Moreover, Shaw fired the weapon during an angry confrontation with Lee and Hinchen. Lee and Hinchen testified that Shaw aimed the gun at Hinchen when he fired the shots. Under these circumstances, it is reasonable to infer that Lee and Hinchen would call the police to report the incident. And Shaw admits he fired the gun, though he claims he fired a single warning shot into the ground. Even if the jury believed that Shaw only fired a warning shot, it is still reasonable to conclude that Lee and Hinchen would call the police because Shaw, who was admittedly angry, fired the weapon during an argument.

{¶25} Shaw also knew that Harris had a protective order that prohibited Hinchen from coming to her house. Shaw testified that when he learned that Hinchen was at the front door, he thought to himself:

I'm like he's back again. This is not the first time he's done this. Call the police. I don't know why the police force is not here. Called the police various times. Took the next step to get a restraining order.

(Tr. 736.) Thus, it is reasonable to infer that Shaw knew Harris would have called the police to the scene to enforce the protection order against Hinchen, whom Harris claimed had become increasingly aggressive. Therefore, under the totality of the circumstances, the jury could reasonably conclude that Shaw knew there was a strong likelihood that the police would soon arrive on the scene to investigate the shooting.

{¶26} Shaw further argues there was no evidence that Shaw placed the gun in the basement of his apartment for the purpose of impairing its availability as evidence in a criminal investigation. He contends he placed the gun in the basement to secure it from his girlfriend's children.

{¶27} If Shaw merely wanted to secure the gun, he could have locked it in a lock box, a pistol safe, or some other locked cabinet. However, he concealed the gun inside a hole in the wall of the basement immediately after the shooting. This act alone is sufficient to indicate an intent to hide the weapon from the police, who were likely to arrive shortly thereafter.

{¶28} Further, Shaw denied possessing or shooting the gun when the police later questioned him about the shooting. This misrepresentation, coupled with his act of concealing the gun inside a wall in the basement, demonstrates an intent to hide the gun from the police, who were investigating the shooting. Moreover, the question as to whether Shaw placed the gun in the wall solely for the purpose of securing it away from his girlfriend's children, as opposed to hiding it from the police, goes to Shaw's credibility, not the sufficiency of the evidence. The undisputed evidence showed that Shaw concealed the firearm in the wall of the basement immediately after the shooting and subsequently lied about possessing a gun in order to further conceal the evidence.

{¶29} Therefore, there was sufficient evidence to establish that Shaw knew that an investigation was likely to occur and that Shaw hid the firearm in order to prevent the police from discovering it.

{¶30} The first assignment of error is overruled.

B. Misdemeanor Offense

{¶31} In the second assignment of error, Shaw argues his third-degree felony conviction for discharging a firearm on or near a prohibited premises should be reduced to a fourth-degree misdemeanor to conform to the jury's verdict.

{¶32} Shaw was found guilty of discharging a firearm on or near a prohibited premises in violation of R.C. 2923.162(A)(3), which provides that "no person shall discharge a firearm upon or over a public road or highway." The indictment alleged that Shaw discharged a firearm upon or over a public road or highway and that "the violation created a substantial risk of physical harm to any person or caused serious physical harm to property." This language elevated the offense from a misdemeanor to a third-degree felony pursuant to R.C. 2923.162(C)(2).

{¶33} Although the trial court instructed the jury on the offense enhancing language, the verdict form on which the jury found Shaw guilty did not include the aggravating elements. R.C. 2945.75 provides:

When the presence of one or more additional elements makes an offense one of more serious degree * * * [a] guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

{¶34} The Ohio Supreme Court has held that because this statutory language is plain and unambiguous, it must be applied as written. State v. Pelfrey , 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 11. See also State v. Lee , 2016-Ohio-8324, 75 N.E.3d 956, ¶ 32. " R.C. 2945.75(A) plainly requires that in order to find a defendant guilty of 'an offense * * * of more serious degree,' the guilty verdict must either state 'the degree of the offense of which the offender is found guilty' or state that 'additional element or elements are present.' " Id.

{¶35} The state concedes that the verdict form in this case does not support a third-degree felony conviction because it neither states the degree of the offense nor provides the offense enhancing language. Therefore, based on the verdict form, the jury could only find Shaw guilty of the misdemeanor version of the offense.

{¶36} However, despite Shaw's argument that his conviction should be reduced to a fourth-degree misdemeanor, R.C. 2923.162(C)(1) provides that discharging a firearm "upon or over a highway" in violation of R.C. 2923.162(A)(3) is a first-degree misdemeanor. Therefore, Shaw's discharging a firearm on or near a prohibited premises should be reduced from a third-degree felony to a first-degree misdemeanor.

{¶37} The second assignment of error is sustained.

C. Jury Instruction on Misdemeanor Offense

{¶38} In the third assignment of error, Shaw argues, in the alternative to the second assignment of error, that the trial court erred in failing to charge the jury on the misdemeanor offense of discharging a weapon on or near a prohibited premises. However, because we have determined that Shaw could only be convicted of the misdemeanor form of the offense according to the verdict form, this assigned error is moot.

D. Ineffective Assistance of Counsel

{¶39} In the fourth assignment of error, Shaw argues his Sixth Amendment right to the effective assistance of counsel was violated because his trial counsel failed to ensure that the court provided complete and accurate jury instructions on the elements of tampering with evidence and the misdemeanor version of discharging a firearm at or near a prohibited premises. Since we have already determined that Shaw could only be convicted of the misdemeanor version of discharging a firearm at or near a prohibited premises, our discussion focuses solely on Shaw's arguments as they relate to the trial court's instructions on tampering with evidence.

{¶40} To establish a claim for ineffective assistance of counsel, Shaw must show that his trial counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, the defendant must demonstrate there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland at 694, 104 S.Ct. 2052.

{¶41} As previously stated, Shaw contends his trial counsel should have asked the court to instruct the jury on how it should determine whether Shaw knew that an investigation would likely be instituted against him in accordance with Barry , 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248. He contends the court's charge, which mirrored the statutory language governing tampering with evidence, was inaccurate and incomplete.

{¶42} As previously stated, the Ohio Supreme Court in Barry specifically rejected the proposition that by simply committing an "unmistakable crime," the defendant has constructive knowledge of an impending investigation into the crime. Id. at ¶ 23. Accordingly, the court in Barry held that the trial court erred by providing the following "unmistakable crime" instruction:

When an offender commits an unmistakable crime, the offender has constructive knowledge of an impending investigation of the crime committed.

The trial court in this case did not provide an "unmistakable crime" instruction.

{¶43} Further, R.C. 2921.12(A)(1), which governs tampering with evidence, provides that "no person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]" The court charged the jury on tampering with evidence as follows:

Before you can find the defendant guilty of tampering with evidence, you must find beyond a reasonable doubt that on or about the 20th day of December 2015 in Cuyahoga County, Ohio, the defendant did, knowing that an official proceeding or investigation was in progress or was about to be or likely to be instituted, alter, destroy, conceal or remove any record, document or thing with purpose to impair its value or availability as evidence in such proceeding or investigation.

The trial court's instruction on the elements of tampering with evidence was consistent with the statute. In Barry, the Ohio Supreme Court defined the term "knowingly" as follows:

"A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact."

Id. at ¶ 23, quoting R.C. 2901.22(B).

{¶44} With respect to the knowingly mens rea, the trial court instructed the jury as follows:

A person acts knowingly regardless of purpose when the person's aware that person's conduct will probably cause a certain result or be of a certain nature. A person has knowledge of circumstances when the person's aware that such circumstances probably exist.
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or act with a conscious purpose to avoid learning the fact.

{¶45} This language is identical to the Ohio Supreme Court's definition of "knowingly" in Barry . The trial court's instructions on tampering with evidence and the term "knowingly" were consistent with Barry in every respect. There was no reason for Shaw's counsel to request a different instruction since the charge the court gave the jury was a complete and accurate statement of the applicable law.

{¶46} Therefore, the fourth assignment of error is overruled.

III. Conclusion

{¶47} Shaw's tampering with evidence conviction was supported by sufficient evidence. A jury could reasonably conclude that Shaw expected the police would respond to the scene to investigate the shooting since the incident occurred in daylight, there were two surviving victims who would have likely called the police, and his girlfriend was inclined to call the police to enforce a protection order against Hinchen.

{¶48} Shaw's discharging a firearm on or near a prohibited premises should have been reduced to a first-degree misdemeanor because the verdict form failed to state either the degree of the offense or the offense enhancing language that would have elevated the offense to a third-degree felony.

{¶49} Shaw was not deprived of his Sixth Amendment right to counsel even though counsel did not request a jury instruction on tampering with evidence that included special instructions on the "knowingly" mens rea of the offense. The jury instructions provided by the trial court were consistent with the applicable statutes and the Ohio Supreme Court's decision in Barry , 145 Ohio St.3d 354, 2015-Ohio-5449, 49 N.E.3d 1248.

{¶50} Accordingly, the trial court's judgment is affirmed in part and modified in part. Shaw's discharging a firearm on or near a prohibited premises conviction is reduced from a third-degree felony to a first-degree misdemeanor to conform to the verdict form. We remand the case to the trial court for resentencing on the first-degree misdemeanor.

TIM McCORMACK, P.J., CONCURS;

SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE ATTACHED OPINION

SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:

{¶51} I concur with the majority's decision to grant reconsideration on the first assigned error; however, I am not persuaded by the majority's effort to bolster their view that Shaw committed tampering with evidence. Thus, I respectfully dissent from the majority's view on the first assignment of error that there was sufficient evidence to establish for that offense. I concur with respect to the majority's conclusion on the remaining assignment of errors.

{¶52} As indicated in my original dissent, at most, Shaw committed falsification, an offense for which he was not charged. Under the majority's rationale, every defendant who does not immediately confess to the police and turn over all evidence of a crime has arguably tampered with evidence. This is an erroneous application of the tampering with evidence statute that stretches the inferences of what a criminal defendant does to an unreasonable extreme. I concur with regard to the other assignments of error.