[Cite as State v. Hignite, 2015-Ohio-5204.]

                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :
                                                           CASE NO. CA2015-07-063
        Plaintiff-Appellant,                        :
                                                                    OPINION
                                                    :                12/14/2015
    - vs -
                                                    :

DARRYL HIGNITE,                                     :

        Defendant-Appellee.                         :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 15CR30825



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellant

Helbling Law Firm, LLC, John J. Helbling, 6539 Harrison Avenue, Cincinnati, Ohio 45247, for
defendant-appellee



        S. POWELL, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Warren

County Court of Common Pleas granting two motions in limine in favor of defendant-

appellee, Darryl Hignite. For the reasons outlined below, we reverse the trial court's decision

and remand for further proceedings.

                                     Facts and Procedural History

        {¶ 2} On March 23, 2015, the Warren County Grand Jury returned an indictment
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charging Hignite with one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree

felony. According to the bill of particulars, the charge stemmed from allegations Hignite

entered a US Bank located in Warren County at approximately 1:00 p.m. on August 5, 2014

and presented a teller with a note demanding $5,000 in cash "with no dye packets." Hignite

is then alleged to have received approximately $4,000 in cash from the teller before fleeing

from the scene.

        {¶ 3} On May 29, 2015, the state filed a notice of its intent to introduce so-called

"other acts" evidence at trial pursuant to Evid.R. 404(B). Specifically, the state provided

notice that it planned to introduce photographic and video evidence Hignite attempted to rob

an LCNB National Bank located in Butler County on September 13, 2014 before successfully

robbing a Chase Bank also located in Butler County later that same day. Hignite ultimately

pled guilty to both crimes in State v. Hignite, Butler C.P. No. CR2014-09-1473. According to

the state, this evidence was admissible because it established Hignite's modus operandi and

identity by depicting him wearing similar clothing to the individual shown robbing the US Bank

now at issue.1

        {¶ 4} On June 25, 2015, Hignite filed a motion in limine seeking to exclude the

photographic and video evidence at trial by claiming it was inadmissible under both Evid.R.

404(B) and Evid.R. 403(A). Hignite then filed an additional motion in limine seeking to

exclude a summary of an interview Hignite had with police, wherein he is alleged to have

made a statement implicating himself in the US Bank robbery. On the morning of trial, the

trial court issued a decision from the bench granting Hignite's two motions in limine. In

reaching its decision, the trial court found the disputed evidence, although relevant and



1. The state also provided notice that it planned to introduce photographic and video evidence that Hignite
robbed another US Bank located in Hamilton County several years earlier on July 7, 2007. Hignite pled guilty to
this robbery in State v. Hignite, Hamilton C.P. No. B0705843. That evidence, however, is not a subject of this
appeal.
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generally admissible, would nevertheless be excluded at trial under Evid.R. 403(A) because

its probative value substantially outweighed the danger of unfair prejudice to Hignite.

       {¶ 5} Specifically, as the trial court stated in regards to the photographic and video

evidence from LCNB National Bank and Chase Bank:

                With respect to the pictures and videos from September 13th,
                specifically from LCNB and from the Chase Bank, the Court finds
                that there are similarities in the way the defendant presents
                himself the way he acts and the way he – his gait, his
                appearance, that there are similarities that would be probative as
                to the issue of identification. That being said, the evidence is so
                unfairly prejudicial, that I find that even a limiting instruction will
                not be sufficient to prevent the jury from drawing an inference as
                to the defendant's character and that he acted in conformity with
                that character on August [5], 2014, so I am going to exclude the
                videos and the still photos from the incidents of September 13,
                2014.

       {¶ 6} In addition, as it relates to the summary of the interview containing Hignite's

alleged statement he made to police implicating himself in the US Bank robbery, the trial

court stated:

                But, having reviewed the statement, itself, I find that the
                statement, the context of the statement, if provided to the jury in
                a limited fashion that I would have to do to carve it up so as not
                to bring in his prior convictions or his other bad acts, to carve that
                up in such a way would have to be done to the point where the
                evidence that would remain would not be in proper context, it
                would not be reliable, and there is a high probability again that
                the jury would seize upon this evidence as character evidence,
                and invite them to really to lose their way. So, I'm going to
                exclude the interviews of the defendant, statements made by the
                defendant, again in the State's case in chief, for those reasons.

       {¶ 7} On June 30, 2015, the trial court issued a written decision incorporating its

ruling granting Hignite's motions in limine. After issuing its written decision, the state filed a

timely certification pursuant to Crim.R. 12(K) and a notice of appeal, raising two assignments

of error for review.

                 Denial of a Motion in Limine as a Final Appealable Order


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       {¶ 8} Prior to addressing the merits of the state's two assignments of error, we must

first consider whether the trial court's decision is a final appealable order. Pursuant to R.C.

2945.67, the state "may appeal as a matter of right any decision of a trial court in a criminal

case, * * * which decision grants * * * a motion to suppress evidence[.]" Crim.R. 12(K)

supplements and formalizes this statutory procedure. State v. Hatter, 1st Dist. Hamilton Nos.

C-130326, C-130331, C-130332 and C-130353, 2014-Ohio-1910, ¶ 7. Specifically, Crim.R.

12(K) provides that when the state takes an appeal from an order suppressing or excluding

evidence, "the prosecuting attorney must certify that (1) the appeal is not taken for the

purpose of delay, and (2) the ruling on the motion or motions has rendered the state's proof

with respect to the pending charge so weak in its entirety that any reasonable possibility of

effective prosecution has been destroyed." Id.

       {¶ 9} "The purpose and effect of a motion to suppress and a motion in limine are

distinct." State v. French, 72 Ohio St.3d 446, 449 (1995). A motion to suppress is the proper

vehicle for raising constitutional challenges. State v. Miller, 11th Dist. Portage No. 2012-P-

0032, 2012-Ohio-5585, ¶ 14. In contrast, "[a] motion in limine is tentative and precautionary

in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial." City of

Defiance v. Kretz, 60 Ohio St.3d 1, 4 (1991). In turn, a trial court's decision ruling on motion

in limine is generally not a final appealable order. State v. Grubb, 28 Ohio St.3d 199, 201-

202 (1986). However, in cases involving appeals under R.C. 2945.67, such as the case

here, the Ohio Supreme Court has taken a "look beyond the label" approach in determining

whether an order is subject to appeal. State v. Elqatto, 10th Dist. Franklin No. 11AP-914,

2012-Ohio-4303, ¶ 9.

       {¶ 10} For instance, in State v. Davidson, 17 Ohio St.3d 132 (1985), the defendant

argued that a trial court order granting a motion in limine was not appealable under R.C.

2945.67 because the statute provided that the state could only appeal from a decision
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granting a "motion to suppress evidence." Id. at 134-35. However, the Ohio Supreme Court

rejected this argument and found any motion seeking to obtain a judgment excluding

evidence at trial constituted a "motion to suppress" for purposes of R.C. 2945.67, when the

motion, if granted, would destroy the state's ability to effectively prosecute the case.

Specifically, as the Ohio Supreme Court stated in Davidson:

              Any motion, however labeled, which, if granted, restricts the state
              in the presentation of certain evidence and, thereby, renders the
              state's proof with respect to the pending charge so weak in its
              entirety that any reasonable probability of effective prosecution
              has been destroyed, is, in effect, a motion to suppress. The
              granting of such a motion is a final order and may be appealed
              pursuant to R.C. 2945.67 and Crim.R. 12[K].

Id. at syllabus.

       {¶ 11} Therefore, inasmuch as the trial court effectively suppressed the disputed

evidence by granting Hignite's two motions in limine, thereby excluding such evidence from

trial, it is proper for this court to review the trial court's decision. "[W]here an evidentiary

ruling destroys the state's case, the ruling is in essence a final order from which the state

may appeal." State v. Bassham, 94 Ohio St.3d 269, 271 (2002). In so holding, we note that

Hignite did not dispute the state's claim that this matter was immediately appealable in his

appellate brief or during oral argument before this court.

                                     Standard of Review

       {¶ 12} It is well-established that this court generally reviews a trial court's ruling on a

motion in limine for an abuse of discretion. State v. Durbin, 10th Dist. Franklin No. 14AP-

249, 2014-Ohio-5759, ¶ 14. However, as this court recently stated, this is an improper

standard of appellate review to use where a motion in limine is the functional equivalent of

motion to suppress. State v. Shalash, 12th Dist. Warren No. CA2014-12-146, 2015-Ohio-

3836, ¶ 42, citing State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-450, ¶ 27.

Rather, this court uses the standard of review applicable to a motion to suppress. Id. In
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reviewing a trial court's decision on a motion to suppress, this court must accept as true the

trial court's findings of fact if they are supported by competent, credible evidence, and then

independently determine, without deference to the trial court's decision, whether the facts

satisfy the applicable legal standard. State v. Myers, 12th Dist. Clinton Nos. CA2014-02-002

and CA2014-02-004, 2015-Ohio-160, ¶ 11.

       {¶ 13} Assignment of Error No. 1:

       {¶ 14} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS

DISCRETION WHEN IT GRANTED [HIGNITE'S] MOTION IN LIMINE TO EXCLUDE

EVIDENCE OF [HIGNITE'S] OTHER BANK ROBBERIES.

       {¶ 15} In its first assignment of error, the state argues the trial court erred by granting

Hignite's motion in limine to exclude the photographic and video evidence from LCNB

National Bank and Chase Bank. We agree.

       {¶ 16} Evid.R. 402 provides that all relevant evidence is generally admissible. State v.

Harrington, 159 Ohio App.3d 451, 2004-Ohio-7140, ¶ 9 (12th Dist.). "Relevant evidence" is

defined as "evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence." Evid.R. 401. However, pursuant to Evid.R. 403(A), relevant

evidence is not admissible and shall be excluded "if its probative value is substantially

outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the

jury." Unfairly prejudicial evidence is evidence that might result in an improper basis for a

jury decision. State v. Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014,

2014-Ohio-5491, ¶ 23, citing State v. Bowman, 144 Ohio App.3d 179, 186 (12th Dist.2001).

"[I]f the evidence arouses the jury's emotional sympathies, evokes a sense of horror, or

appeals to an instinct to punish, the evidence may be unfairly prejudicial." State v. Crotts,

104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 24.
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       {¶ 17} Evidence that an accused committed a crime other than the one for which he is

on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character. State v.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 40.

In turn, pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that a person acted in

conformity therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008-

06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes,

including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the

absence of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223,

2013-Ohio-4327, ¶ 22.

       {¶ 18} Here, just as the trial court found, the photographic and video evidence from

LCNB National Bank and Chase Bank was properly admissible under Evid.R. 404(B) to

establish Hignite's identity as the robber of the US Bank now at issue. As this court has

stated previously, "[o]ther-acts evidence need be proved only by substantial proof, not proof

beyond a reasonable doubt." State v. Bromagen, 12th Dist. Clermont No. CA2005-09-087,

2006-Ohio-4429, ¶ 14. In this case, however, Hignite pled guilty to both charges relating to

his attempted robbery of LCNB National Bank and his successful robbery of Chase Bank.

See State v. Hignite, Butler C.P. No. CR2014-09-1473. Therefore, because we find the trial

court did not err by finding this evidence was properly admissible under Evid.R. 404(B), the

issue in this case is whether the trial court erred by finding the disputed evidence, although

relevant, should be excluded at trial under Evid.R. 403(A).

       {¶ 19} After a thorough review of the record, we find the trial court erred by finding the

probative value of the photographic and video evidence depicting Hignite attempting to rob

LCNB National Bank before successfully robbing Chase Bank in the same manner he is
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alleged to have robbed the US Bank at issue here was substantially outweighed by the

danger of unfair prejudice to him. As the record reveals, the identity of the individual who

robbed the US Bank was a material issue at trial. Outside of eyewitness testimony or DNA

evidence directly linking Hignite to the crime, we find this evidence could not be more

probative as to the issue of identity, let alone that its probative value could be substantially

outweighed by the danger of unfair prejudice. Simply stated, the photographs and video

evidence from LCNB National Bank and Chase Bank will allow the jury to view Hignite – his

gait, appearance and actions – and compare it to the individual depicted robbing the US

Bank now at issue. Nothing about this evidence arouses the jury's emotional sympathies, nor

does it evoke a sense of horror, or appeal to an instinct to punish so as to be considered

unfairly prejudicial.

       {¶ 20} We also find the trial court erred by finding a limiting instruction would not be

sufficient to minimize any potential prejudice to Hignite. It is well-established that a jury is

presumed to follow and comply with instructions given by the trial court. State v. Carpenter,

12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, ¶ 20, citing Pang v. Minch, 53 Ohio

St.3d 186 (1990). Therefore, the trial court's decision finding a limiting instruction would be

insufficient to overcome any potential prejudice to Hignite was improper and contrary to "the

almost invariable assumption of the law that jurors follow [the trial court's] instructions."

Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702 (1987), citing Francis v. Franklin,

471 U.S. 307, 325, fn. 9, 105 S.Ct. 1965 (1985).

       {¶ 21} We find it important to note that "[l]ogically, all evidence presented by a

prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant. It is only the

latter that Evid.R. 403 prohibits." State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-

Ohio-7073, ¶ 16. However, as stated previously, nothing about this evidence, as opposed to

any other so-called "other acts" evidence deemed admissible under Evid.R. 404(B), indicates
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that it has the potential to undermine the effectiveness of a proper limiting instruction.

Therefore, because we find the trial court erred by granting Hignite's motion in limine as it

relates to the photographic and video evidence from LCNB National Bank and Chase Bank,

the state's first assignment of error is sustained.

       {¶ 22} Assignment of Error No. 2:

       {¶ 23} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS

DISCRETION WHEN IT GRANTED [HIGNITE'S] MOTION IN LIMINE TO EXCLUDE

[HIGNITE'S] STATEMENT TO POLICE.

       {¶ 24} In its second assignment of error, the state argues the trial court erred by

granting Hignite's motion in limine to exclude a summary of an interview Hignite had with

police, wherein he is alleged to have made a statement to police implicating himself in the US

Bank robbery now at issue. Yet, while we agree that the summary itself is not admissible,

based on the record before this court, we see no reason why the officers who conducted the

interview of Hignite should be precluded from testifying about Hignite's alleged statement to

them. As noted by the Ohio Supreme Court, "[a] defendant's own out-of-court statements,

offered against him at trial, are not hearsay." State v. Leonard, 104 Ohio St.3d 54, 2004-

Ohio-6235, ¶ 112. In addition, similar to the disputed evidence discussed above, we again

find nothing about this evidence indicates it has the potential to arouse the jury's emotional

sympathies, evoke a sense of horror, or appeal to an instinct to punish so as to be deemed

unfairly prejudicial. Therefore, the state's second assignment of error is also sustained.

       {¶ 25} Judgment reversed and remanded for further proceedings.


       PIPER, P.J., and RINGLAND, J., concur.




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