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March 5, 2026 Get Citation Alerts Download PDF Add Note

State v. McInnes

Ohio Court of Appeals

• Citations: 2026 Ohio 734
• Docket Number: 115053

• Judges: E.T. Gallagher

• Opinion

• Authorities (60)

• Cited By (0)

• Summaries (0)

• Similar Cases (68)

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Syllabus

Burden of proof; affirmative defense; qualified immunity; police; excessive force; expert testimony; lay opinion testimony; sufficiency; manifest weight; Graham v. Connor; confrontation; Garrity statements; Garrity v. New Jersey; grand-jury transcript; sentencing. Trial court properly placed burden of proving affirmative defense of reasonableness on the defendant by a preponderance of the evidence. Trial court properly admitted lay opinion testimony from three police officers where the opinion testimony was based on the rational perception of the witnesses and the testimony was helpful to clear understanding of the use of force under the circumstances. Defendant's convictions were supported by sufficient evidence and by the manifest weight of the evidence where the witnesses' testimony regarding the defendant's use of excessive force was corroborated by body-camera and other video evidence. Defendant's right of confrontation was not violated by the absence of one of the victims from trial because no statements by the absent witness were admitted into evidence and all other witnesses were subject to cross-examination. Even though defendant's supervisor asked him to complete a use-of-force report, there were no Garrity violations because there was no evidence that the defendant was coerced into completing the report. Trial court's denial of defendant's request for grand-jury transcripts was not an abuse of discretion where the defendant failed to establish a particularized need for the transcripts. Defendant's sentence was not contrary to law where the trial court considered applicable sentencing statutes and his sentence was within the statutory range of penalties for his convictions. Defendant's sentence was also supported by the record.

Combined Opinion

[Cite as State v. McInnes, 2026-Ohio-734.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 115053
v. :

IAN W. MCINNES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-681351-I

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew Rogalski, Samantha Sohl, and
Tasha Forchione, Assistant Prosecuting Attorneys, for
appellee.

Susan J. Moran, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant Ian W. McInnes (“McInnes”) appeals his

convictions and sentence. He claims the following errors:

1. The trial court erred by creating a burden upon the appellant to
   establish an affirmative defense which is not required by law, violating
   Mr. McInnes’ right to due process and a fair trial, as provided in the
   Fifth and Fourteenth Amendments to the United States Constitution
   and Article I, Section 16 of the Ohio Constitution.

2. The trial court erred in failing to dismiss Mr. McInnes’s indictment
   since he was shielded from criminal prosecution by qualified
   immunity.

3. The trial court deprived Mr. McInnis of his right to due process and
   a fair trial as provided in the Fifth and Fourteenth Amendments to the
   United States Constitution and Article 1, Section 16 of the Ohio
   Constitution and it allowed the state’s witnesses to provide
   inadmissible testimony regarding use of force, which was not
   compliant with Fourth Amendment considerations as provided in
   Graham v. Connor.

4. Mr. McInnes’s convictions are against the manifest weight of the
   evidence in violation of his right to due process as provided in the Fifth
   and Fourteenth Amendments to the United States Constitution and
   Article I, Section 16 of the Ohio Constitution.

5. The evidence in this case is legally insufficient to justify Mr.
   McInnes’s convictions, in violation of the Fifth, Sixth, and Fourteenth
   Amendments to the United States Constitution and Article 1, Section
   10 of the Ohio Constitution.

6. The court erred by denying Mr. McInnes’s right of confrontation
   under the Sixth Amendment to the United States Constitution and
   Article 1, Section 10 of the Ohio Constitution.

7. The trial court erred in allowing the use of Mr. McInnes’s Garrity
   statements against him in a criminal prosecution in violation of his
   right against self-incrimination protected by the Fifth and Fourteenth
   Amendments to the United States Constitution.

8. The trial court erred in failing to unseal and provide the defense with
   the requested grand jury transcripts to ensure the grand jury utilized
   the proper probable cause standard and reveal possible Garrity
   violations.

9. The trial court erred in imposing a sentence which was not supported
   by the record and was contrary to law.
   We find that the trial court properly placed the burden of proving the

affirmative defense of reasonableness on McInnes, by a preponderance of the

evidence. We also find that the trial court properly overruled McInnes’s motion to

dismiss the indictment, the State’s witnesses were permitted to give lay and expert

opinions regarding the reasonableness of the force used to apprehend suspects, and

that McInnes’s convictions are supported by sufficient evidence and are not against

the manifest weigh of the evidence. McInnes’s guaranteed right of confrontation

under the Sixth Amendment to the United States Constitution was not violated and

there were no Garrity violations. McInnes was not entitled to the grand-jury

transcripts, and his sentence was supported by the record and not contrary to law.

Accordingly, we affirm the trial court’s judgment.

I. Facts and Procedural History

McInnes, a police officer, was charged with ten other East Cleveland

police officers in a 62-count indictment with three counts of attempted felonious

assault, four counts of assault, four counts of interfering with civil rights, four counts

of dereliction of duty, and two counts of felonious assault. The charges related to his

alleged use of excessive force while interacting with four citizens on four separate

dates.

Prior to trial, McInnes filed a motion to dismiss the three counts of

attempted felonious assault alleged in Counts 37, 42, and 46; four counts of assault

alleged in Counts 38, 43, 47, and 55; and one count of felonious assault alleged in

Count 52. He argued those counts should be dismissed because the grand jury was
not properly instructed on whether he acted reasonably as a police officer when he

exercised the use of force. McInnes also filed multiple motions to obtain the grand-

jury transcripts so he could determine whether the jury had been instructed on what

constitutes a “reasonable” use of force. The trial court denied the motions to dismiss

and for the grand-jury transcripts, and the case proceeded to a jury trial. The

witnesses at trial testified with regard to the four separate incidents involving four

different individuals.

Todd Carroscia (“Carroscia”), a patrol-division commander in the East

Cleveland Police Department, explained the department’s policy and procedures

regarding the use of force. (Tr. 559.) He explained that when an officer uses force

with an individual, he or she is obligated to describe the force used and the

circumstances surrounding the use of force in a report called “Form M.” (Tr. 560-

561.) According to Carroscia, the East Cleveland Police Department was “short-

staffed” and the officers were “overworked.” (Tr. 603.) However, he explained that

the shortage of manpower is not an excuse to break the law or to not follow the

department’s policies. (Tr. 604.) Carroscia testified that he never had any issues

with McInnes personally and that he made “fair calls.” (Tr. 603.)

A. Zievan Foster

Craig Beese (“Beese”), who worked as an East Cleveland police officer

from the spring of 2016 until September 2021, testified that on February 25, 2020,

he attempted to stop an individual for speeding. The individual, subsequently

identified as Zievan Foster (“Foster”), refused to stop, and Beese pursued him at a
high rate of speed until Foster’s vehicle hit a tree. McInnes assisted in the pursuit of

Foster. After hitting the tree, Foster fled on foot behind a home where another

officer, Demarcko Johnson (“Johnson”), tased him and caused him to fall to the

ground.

Johnson was wearing a body camera that captured video of Foster’s fall

to the ground. The video, which was played for the jury and admitted into evidence

as State’s exhibit No. 100, shows Foster lying face down on a driveway as McInnes

approached him and appeared to kick him in the ribs before placing him in

handcuffs.

Beese testified that he was the supervising officer responsible for

reviewing McInnes’s use of force. (Tr. 678.) Johnson told Beese about his use of the

Taser, but McInnes did not tell him about the kick. (Tr. 678-683.) Once McInnes’s

use of force was discovered, Beese reported it in a “Form M.” When Beese

questioned McInnes about the kick, he told Beese that he slipped on a crack in the

driveway and that he did not intend to kick Foster. (Tr. 686-687.) Beese thought

the kick was significant because “the subject was already in control due to the Taser

deployment . . . .” (Tr. 683.)

Special Agent Shaun Roth (“Roth”) of the Federal Bureau of

Investigation (“FBI”) testified that he investigated McInnes’s use of force as part of

his assignment to the public corruption and civil rights squad. (Tr. 978.) He

reviewed Johnson’s body-camera video as part of his investigation. In describing
the video, he stated, “[Foster] is laying proned out, as he is instructed to do. At that

time, Ian McInnes comes and kicks the individual in the side.” (Tr. 991.)

Foster testified at trial that he fled from police because he was afraid

they would hurt him or shoot him. (Tr. 632 and 641-642.) After being tased, Foster

showed his hands to the police to let them know he was not armed. (Tr. 641.) Foster

testified that even though his hands were above his head, an officer came “up and

kicked me before he put me in handcuffs.” (Tr. 641.)

As previously stated, Beese indicated that although Johnson reported

his use of the Taser to subdue Foster, McInnes did not report the fact that he kicked

Foster. (Tr. 683.) McInnes testified that he went with Johnson to report the use of

force to Beese. (Tr. 1656.) McInnes further stated that when Beese asked McInnes

what happened, he told him, “[H]ey, I was running. I didn’t intend to do this. I lost

my footing. I was trying to catch myself.” (Tr. 1656.)

The State’s expert on police conduct, Robert Prevot (“Prevot”),

reviewed Johnson’s body-camera video. In his opinion, as soon as Foster was on the

ground with his hands out, it was obvious that he did not have a weapon and, at that

point, “he, pretty much surrendered.” (Tr. 1108.) Although Foster rolled over onto

his back, he was still not a threat because he was not armed and he was “waiting to

be cuffed.” (Tr. 1110.) He was not trying to run away, and he was not resisting.

(Tr. 1110.) Reading from his report, Prevot opined, in relevant part:

“Officer McInnes kicked Mr. Foster on the right side of his rib cage
while Mr. Foster was on the ground. Mr. Foster was not attempting to
flee or resist.
“The only use of force justified in this incident after he was tased was to
place handcuffs on Mr. Foster and assess him for any injuries that he
may have suffered in the collision. Instead, Officer McInnes used
excessive use of force to potentially cause further injury to Mr. Foster.

“The use of force by Mr. McInnes when he kicked Mr. Foster was
objectively unreasonable.”

(Tr. 1113-1114.)

McInnes’s expert, Kevin Davis (Davis”), testified that McInnes’s kick

“was standard practice when a person continues to resist.” (Tr. 1517.) In his opinion,

the kick was reasonable under the circumstances. However, Davis admitted on

cross-examination that McInnes did not report the kick to his supervisor and did

not have his own body camera activated. (Tr. 1595.) It was only when Beese asked

him to provide a description of what happened with Foster that McInnes reported

that he slipped. (Tr. 1595.) When asked whether his expert report mentioned

anything about slipping, Davis replied, “No, it does not.” (Tr. 1591.)

B. Wayne Brown

Roth testified that he learned of the matter involving Wayne Brown

(“Brown”) because a witness published a video of the incident on social media.

(Tr. 995, 998, and 1233.) No report of force had been made of the incident.

(Tr. 1235.) Roth and Robert DeSimone (“DeSimone”), a special investigator with

the Cuyahoga County Prosecutor’s Office, investigated the incident and learned that,

on February 14, 2022, Brown was present at the Best Steak & Gyro Restaurant in

East Cleveland when police received a call about a violent person. Police, including
McInnes, arrived on the scene and attempted to secure Brown. McInnes instructed

Brown to lie down on his stomach on the ground. Brown, who suffers from mental

illness, seemed confused and did not immediately comply with police orders. With

repeated commands, Brown eventually got down on his knees and placed his hands

behind his head. Roth explained:

He put himself down on his knees and put his hands behind his back,
and now you see there is nothing in his hands. At that point, you can
execute the arrest just as he is.

(Tr. 1001.) But instead of handcuffing Brown, McInnes kicked Brown in the back.

(Tr. 1000.) Roth described the incident as follows:

[J]ust watching the video, what is of significance is that the victim, Mr.
Wayne Brown, is on his knees with his hands behind his back, and then
he is kicked in the back slamming his head down and almost hitting the
cement wall in front of him.

(Tr. 1000-1001.)

McInnes testified that his objective was to gain compliance and that

Brown started to show compliance by dropping to one knee. (Tr. 1667.) McInnes

stated, however, that Brown “reached for his leg” and that he did not know what

Brown was reaching for. He explained:

So when he reached for his ankle and started to drop back, I made a
tactical decision to use my foot, displacing him to the ground, giving
me a tactical advantage in the event he did grab a weapon.

(Tr. 1668.)

Both experts reviewed the video evidence and expressed their

opinions to the jury. Davis explained that because Brown ignored several
commands to get down on the ground and because his hands were not visible for a

substantial part of McInnes’s interaction with him, it was reasonable for McInnes to

consider Brown a threat. (Tr. 1532-1534.) Davis concluded that “Officer McInnes’s

use of a push kick under these circumstances is within a range of reasonable police

uses of force.” (Tr. 1534.) He admitted, however, that McInnes’s actions created a

risk of secondary injury if Brown hit his head as a result of being kicked in the back.

(Tr. 1606-1607.)

Prevot acknowledged that it was initially unknown whether Brown was

a threat to police when they arrived on the scene because Brown was wearing a puffy

coat that might have concealed weapons. Brown was also slow to comply with

McInnes’s commands. Nevertheless, Prevot opined that the potential threat Brown

might have posed was removed when he got down on his knees and placed his hands

behind his head. Prevot explained:

Basically my opinion at that moment when he applied the force was
that it was objectively unreasonable. He could have just handcuffed
him, picked him up, and do what he was going to do.

By kicking him and making him fall forward, he could have been a
threat again. I don’t know what purpose the kick served other than to
cause pain. By process of elimination, there was nothing else to do,
except put him in handcuffs.

(Tr. 1127.)

C. Da’Shawn Allen

Da’Shawn Allen (“Allen”) testified that, on October 3, 2021, he was

driving a stolen vehicle when police attempted to pull him over. (Tr. 721.) Instead
of stopping, Allen, who was 17 years old at the time, lead police on a high-speed

chase because he “was scared.” (Tr. 722.) According to Allen, a police car repeatedly

“bumped” into his car during the pursuit. (Tr. 723 and 748.) Eventually, Allen’s

vehicle collided with another car, and Allen fled from the police on foot. (Tr. 723.)

Allen explained that his back hurt so he stopped running, got on his

knees, and put his hands up. (Tr. 724.) Police officers approached him and arrested

him. Allen described the arrest as follows:

I got on my knees. They told me stop resisting. I said, “I’m not
resisting.” They cuffed me, picked me up, punched me in the forehead.
I fell back down. They picked me up again and punched me in the
forehead again. And I fell back down again.

And when I fell back down, they said stop resisting. I’m not resisting.
They started dragging me across the floor, start stumping me. And I
couldn’t do nothing. I was handcuffed. They broke both my hands.

(Tr. 724.) Allen further stated that while he was on ground, someone kicked him in

the groin and he screamed in pain. (Tr. 726-727.)

Roth testified that the FBI established a tip line in October 2022, after

several FBI investigations uncovered “numerous criminal activities” in East

Cleveland. (Tr. 1012.) The FBI learned about Allen’s arrest and the alleged use of

excessive force when his mother reported it to the tip line. (Tr. 1237.)

As part of his investigation, Roth obtained records pertaining to

Allen’s arrest, including the vehicle-pursuit report, docket-type records, and body-

camera footage. Roth also obtained records from the Cleveland Police Department

related to its investigation of the car accident that occurred in the City of Cleveland.
Regarding the body-camera video, which was admitted into evidence

as State’s exhibit No. 301, Roth testified that Allen can be seen “laying flat on his

stomach with his hands restrained behind his back.” (Tr. 1024.) After watching the

video in open court, Roth stated, “We just saw Defendant Ian McInnes strike

Da’Shawn Allen in the groin with his foot while his arms were restrained behind his

back.” (Tr. 1025.) When asked how he could tell that McInnes was the individual

who kicked, he explained that McInnes’s face becomes visible when the video

continues to play a little longer. (Tr. 1025.) McInnes was also wearing a watch,

which is visible after the police lifted Allen off the ground moments after Allen was

kicked in the groin. (Tr. 1026.)

DeSimone also described the action depicted in State’s exhibit

No. 301. He stated:

First, I observed Allen on the ground, sitting there crouching with his
hands up, not resisting. He was ready to be handcuffed. The officers,
as far as McInnes goes — two officers were handling him already on the
ground attempting to cuff him. Officer McInnes can be seen coming
into view and squarely kicking him in the groin.

(Tr. 1273.) When asked where Allen was positioned when McInnes approached,

DeSimone replied, “He is on the ground, his hands are behind his back, face down,

and his legs were open.” (Tr. 1273.) Allen also stated that two East Cleveland police

officers were restraining Allen on the ground when McInnes kicked him. (Tr. 1273.)

Davis believed the video quality was not sufficient to see where

McInnes placed his foot. (Tr. 1543.) He also noted that Allen never complained of
being struck in the groin at the time. (Tr. 1543.) When asked whether he believed

McInnes acted reasonably, Davis stated:

I believe that a kick to the inside of the thigh or to the leg area of Mr.
Allen under these circumstances would be within a range of reasonable
police actions based on the totality of the circumstances.

(Tr. 1546.)

Prevot offered his expert opinion on Allen’s arrest as stated in his

report:

“A review of the body-worn cameras in this case show Officer McInnes
kicking Mr. Allen in the groin. Mr. Allen was already subdued and was
not resisting or threatening anyone when he was intentionally kicked
in the groin by Officer McInnes.

...

“This assault was intentional, objectively unreasonable, and a violation
of Mr. Allen’s civil rights. Mr. Allen screamed out in pain after he was
kicked.”

(Tr. 1141.)

D. Bernard Bennett

Bernard Bennett testified that on April 12, 2022, he fled from East

Cleveland police when they attempted to effect a traffic stop of his vehicle. He led

police on a high-speed chase that ended when he struck a utility pole. Bennett fled

from his car on foot, and East Cleveland police continued to pursue him to the

intersection of East 113th Street and St. Clair Avenue in Cleveland. During the chase,

Bennett ran into a side street and was struck by a police cruiser operated by

McInnes.
Sergeant Ryan Fox (“Fox”), an accident reconstructionist with the

Ohio State Highway Patrol, testified that he reconstructed the crash using a

surveillance camera from the area, body-camera videos, and data collected from the

vehicles’ black boxes. (Tr. 938-939.) Fox reviewed McInnes’s reaction time in

relation to Bennett running into the street and concluded that his reaction was

appropriate under the circumstances. (Tr. 965-967.) Prevot also found that without

evidence to the contrary, he could not conclude that McInnes intentionally struck

Bennett with his car. McInnes’s expert, Davis, agreed that McInnes’s striking of

Bennett appeared to be an accident. (Tr. 1560.)

E. Jury Verdict and Sentence

After hearing all the evidence, the jury found McInnes not guilty of the

attempted felonious assault, but guilty of assault, interfering with civil rights and

dereliction of duty in connection with McInnes’s arrest of Foster; guilty of attempted

felonious assault, assault, interfering with civil rights and dereliction of duty in

connection with his arrest of Brown; not guilty of attempted felonious assault, but

guilty of assault, interfering with civil rights and dereliction of duty in connection

with the arrest of Allen; and not guilty of any of the charges pertaining the arrest of

Bennett.

After merging allied offenses of similar import, the trial court

sentenced McInnes to 180 days in jail on each of his assault convictions alleged in

Counts 38 and 47, 180 days in jail on each of his interfering-with-civil-rights

convictions alleged in Counts 40, 44, and 48, and 30 months in prison on his
attempted-felonious-assault conviction alleged in Count 42. The court ordered the

sentences to be served concurrently for an aggregate 30-month prison term.

McInnes now appeals his convictions and sentences.

II. Law and Analysis

A. Reasonableness Defense

In the first assignment of error, McInnes argues the trial court erred

by shifting the burden of proof onto McInnes to establish the affirmative defense

that his use of force was reasonable. He contends the State bore the burden of

proving, beyond a reasonable doubt, that McInnes’s use of force was unreasonable.

For reasonableness to constitute an affirmative defense, it must meet

the definition of either an “excuse” or “justification.” R.C. 2901.05(D)(1)(b). The

term “excuse” has been defined as a “‘reason that justifies an act or omission or that

relieves a person of a duty’ or a ‘defense that arises because the defendant is not

blameworthy for having acted in a way that would otherwise be criminal.’” State v.

Faggs, 2020-Ohio-523, ¶ 21, quoting Black’s Law Dictionary 688 (10th Ed. 2014).

The term “justification” has been defined as a “‘lawful or sufficient reason for one’s

acts or omissions; any fact that prevents an act from being wrongful’ or a ‘showing,

in court, of a sufficient reason why a defendant acted in a way that, in the absence of

the reason, would constitute the offense with which the defendant is charged.’” Id.,

quoting Black’s at 997. Thus, where a police officer admits to the use of force but

claims the use of force was reasonable in the course of his official duties, the defense
is a claim for justification or excuse. See, e.g., State v. Bolton, 2018-Ohio-1551, ¶ 20-

21 (6th Dist.)

R.C. 2901.05 governs burdens of proof in criminal cases and states, in

relevant part:

Every person accused of an offense is presumed innocent until proven
guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of
proof, by a preponderance of the evidence, for an affirmative defense
other than self-defense, defense of another, or defense of the accused’s
residence presented as described in division (B)(1) of this section, is
upon the accused.

R.C. 2901.05(A). The statute clearly provides that the State bears the burden of

proving, beyond a reasonable doubt, all the elements of the charged offenses, and

the defendant bears the burden of proving an affirmative defense, by a

preponderance of the evidence. Id. The defendant’s burden of proving an

affirmative defense is subject to three enumerated exceptions, namely self-defense,

defense of another, and defense of the accused’s residence. Id.

Reasonable use of force in the course of a police officer’s official duties

is not one of the enumerated exceptions in R.C. 2901.05(A). See Bolton at ¶ 20-21.

(Police officer defendant must prove his affirmative defense of justification by a

preponderance of the evidence.); State v. Brelo, Cuyahoga C.P. No. CR-13-580457A,

2015 Ohio Misc. LEXIS 54, *41-43 (Oct. 14, 2014) (Police officer must prove by a

preponderance of the evidence that he was legally justified in using deadly force on

the victims.). Therefore, according to the plain language of the statute, a police
officer defendant bears the burden of proving, by a preponderance of the evidence,

that his or her use of force was reasonable under the circumstance.

The court in this case instructed the jury regarding McInnes’s

affirmative defense as follows:

Defendant Ian McInnes asserts an affirmative defense that he was
justified in his use of force in the exercise of his official duties as a police
officer. . . .

The burden of going forward with the evidence of the affirmative
defense and the burden of proving this defense are upon the defendant
Ian McInnes. In order to establish this defense, the defendant must
prove by preponderance of the evidence that he was acting in pursuit
of his official duties and that his use of force was objectively reasonable
under the circumstances.

...

If the defendant fails to establish by its preponderance of the evidence
that his actions were justified in his use of force in the exercise of his
official duties as a police officer, the State must still prove to you beyond
a reasonable doubt all the elements of the crime.

(Tr. 1752-1754.) The jury’s instruction correctly placed the burden of proving the

reasonable-use-of-force defense on McInnes, by a preponderance of the evidence.

It also properly placed the burden on the State to prove, beyond a reasonable doubt,

all the elements of the offenses charged. Therefore, the first assignment of error is

overruled.

B. Qualified Immunity

In the second assignment of error, McInnes argues the trial court

erred in denying his motion to dismiss the indictment. He argues the trial court

should have dismissed the case because he was shielded from liability under the
doctrine of qualified immunity even if he mistakenly exceeded the amount of force

necessary under the circumstances.

Ordinarily, we review “a trial court’s decision on a motion to dismiss

an indictment for abuse of discretion.” State v. Hudson, 2022-Ohio-1435, ¶ 19.

However, when the issue presented raises a question of law, we review the trial

court’s judgment de novo. Id. In a de novo review, we afford no deference to the

trial court’s decision. State v. Buehner, 2021-Ohio-4435, ¶ 43 (8th Dist.).

“A motion to dismiss tests the sufficiency of the indictment, without

regard to the quantity or quality of evidence that may be produced at trial.” State v.

Preztak, 2009-Ohio-621, ¶ 12 (8th Dist.), citing State v. Patterson, 63 Ohio App.3d

91, 111 (2d Dist. 1989). If the indictment is valid on its face, a motion to dismiss

should not be granted. Id., citing State v. Eppinger, 2005-Ohio-4155, ¶ 36 (8th

Dist.) (“Where a motion to dismiss requires examination of evidence beyond the face

of the indictment, it must be presented as a motion for acquittal at the close of the

state’s case.”). In determining whether an indictment is valid on its face, the proper

inquiry is whether the allegations contained in the indictment constitute an offense

under Ohio law. Eppinger at ¶ 37.

McInnes argues the indictment should have been dismissed because

the doctrine of qualified immunity shields him from criminal liability. “The doctrine

of qualified immunity generally shields public officials performing discretionary

functions from liability for civil damages to the extent that their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Cleveland Constr., Inc. v. Cincinnati, 2006-Ohio-6452,

¶ 80 (1st Dist.), overruled on other grounds, Cleveland Constr., Inc. v. Cincinnati,

2008-Ohio-2337, citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The doctrine of qualified immunity does not apply to criminal

prosecutions; it is exclusively applicable in civil cases, particularly those brought

under 42 U.S.C. 1983, to shield government officials from personal liability for

damages when their conduct does not clearly violate established law. Malley v.

Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it

provides ample protection to all but the plainly incompetent or those who knowingly

violate the law.”).

In Imbler v. Pachtman, 424 U.S. 409, 429 (1976), the Court explained

that although government officials may enjoy immunity from civil liability, the

public is not powerless to deter misconduct or to punish it when it occurs because

government officials remain subject to criminal liability. In United States v. Gillock,

445 U.S. 360, 372 (1980), the Court explained:

“Whatever may be the case with respect to civil liability generally . . . or
civil liability for willful corruption . . . we have never held that the
performance of the duties of judicial, legislative, or executive officers,
requires or contemplates the immunization of otherwise criminal
deprivations of constitutional rights.”

Id., quoting O’Shea v. Littleton, 414 U.S. 488, 503 (1974). See also United States v.

Dee, 912 F.2d 741, 744 (4th Cir. 1990) (“Suffice it to say that sovereign immunity

does not attach to individual government employees so as to immunize them from

prosecution for their criminal acts.”).
McInnes nevertheless cites Saucier v. Katz, 533 U.S. 194 (2001), and

Pearson v. Callahan, 555 U.S. 223 (2009), in support of his claim for qualified

immunity. However, both of these cases addressed the application of qualified

immunity in the context of civil litigation. Pearson expressly distinguishes

application of qualified immunity between civil and criminal cases, observing that

“[m]ost of the constitutional issues that are present in § 1983 damages actions and

Bivens cases also arise in cases in which that defense is not available, such as

criminal cases . . . .[1]” Id. at 242. Therefore, Saucier and Pearson are inapplicable

to the case at bar.

Furthermore, Ohio law does not provide immunity from criminal

liability. Although the Ohio Revised Code provides limited forms of criminal

immunity in narrow contexts (e.g., for witnesses2 and statutory exemptions for

officers3), no statute provides blanket immunity to police officers for assault or other

forms of excessive use of force. R.C. 9.86 provides immunity to government

employees and officials for negligent acts performed in their official capacities, and

R.C. Ch. 2744 provides immunity to political subdivisions, but these sections only

provide immunity from civil liability, not criminal liability. Indeed, in Cleveland v.

Graham, 2024-Ohio-336 (8th Dist.), the court denied a police officer’s request to

1 A Bivens action is a lawsuit against federal law enforcement officers for money
damages for violating one’s constitutional rights under color of federal authority. See
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

2 R.C. 101.44 and 2945.44.

3 R.C. 4511.191(A)(5)(b).
apply the political-subdivision immunity provided in R.C. Ch. 2744 in his criminal

case, stating the question as to whether to confer immunity from criminal liability

“is best left to the legislature.” Id. at ¶ 74. The legislature has not provided immunity

to police for excessive-use-of force crimes. Id.

Finally, McInnes argues his indictment was defective on its face

because the offenses alleged therein did not include the absence of a reasonableness

finding as an element of the offenses. He contends that “[b]ecause the

‘unreasonableness’ of Mr. McInnes’s alleged action was an element of the offense,

the grand jury was required to find probable cause that the ‘unreasonable’ element

exists.” (Appellant’s brief p. 12.) However, McInnes was charged with, and was

convicted of, attempted felonious assault in violation of R.C. 2923.02/2903.11;

assault in violation of R.C. 2903.13(A); interfering with civil rights in violation of

R.C. 2921.45(A); and dereliction of duty in violation of R.C. 2921.44(B). There is no

“unreasonable” element in any of these offenses. And, as previously stated in the

first assignment of error, reasonable use of force in the course of a police officer’s

official duties is not one of the enumerated exceptions to the defendant’s burden of

proving an affirmative defense as provided in R.C. 2901.05(A). Therefore, the

indictment was not defective on its face for failing to allege unreasonableness as an

element of the offenses.

The second assignment of error is overruled.
C. Expert and Lay Testimony

In the third assignment of error, McInnes argues the trial court

abused its discretion by admitting into evidence lay and expert testimony regarding

his use of force.

The admission of evidence lies within the broad discretion of a trial

court. State v. Noling, 2002-Ohio-7044, ¶ 43. We, therefore, will not disturb the

trial court’s evidentiary decisions absent an abuse of discretion. Id.

An abuse of discretion occurs when the trial court exercises “its

judgment, in an unwarranted way, in regard to a matter over which it has

discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.

However, “a trial ‘court does not have discretion to misapply the law.’”

Morgan v. Greater Cleveland Regional Transit Auth., 2025-Ohio-1655, ¶ 64 (8th

Dist.), quoting Johnson at ¶ 38. “Thus, an abuse of discretion also occurs when a

court ‘“applies the wrong legal standard, misapplies the correct legal standard, or

relies on clearly erroneous findings of fact.”’” Id., quoting Thomas v. Cleveland,

2008-Ohio-1720, ¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265 F.3d 399 (6th

Cir. 2001).

McInnes argues the trial court erred by allowing Roth, Prevot, and

DeSimone to offer expert opinions regarding the appropriate use of police force.

McInnes further contends that Roth, Prevot, and DeSimone impermissibly opined

on the ultimate issue of whether McInnes used excessive force against the four

victims identified in the indictment.
Testimony on an ultimate issue is not per se inadmissible in Ohio.

Evid.R. 704 provides that “[t]testimony in the form of an opinion or inference

otherwise admissible is not objectionable solely because it embraces an ultimate

issue to be decided by the trier of fact.”

Only Prevot was officially qualified as an expert by the trial court. Roth

and DeSimone testified as lay witnesses. Evid.R. 701 governs the opinion testimony

by lay witnesses and states:

If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
witness and (2) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.

Evid.R. 702 governs expert testimony. To be admissible, expert

testimony must (1) relate to scientific, technical, or other specialized knowledge;

(2) assist the trier of fact to understand the evidence or to determine a fact in issue;

(3) be relevant and material to an issue in the case; and (4) have a probative value

that outweighs any prejudicial impact. State v. Jackim, 2009-Ohio-6640, ¶ 41 (8th

Dist.).

1. Roth’s Testimony

Roth first testified regarding McInnes’s arrest of Foster. After the jury

viewed Johnson’s body-camera footage of the arrest, Roth described the acts

depicted in the video, stating that Foster was on the ground after being tased with

arms “proned out” when McInnes “comes and kicks the individual in the side.”

(Tr. 991-992.) Defense counsel did not object to this testimony, presumably because
the jury had just seen the video of the incident and could see for themselves what

had occurred.

In State v. Rivers, 2025-Ohio-40, ¶ 45-48 (8th Dist.), we held that a

trial court did not err in allowing a detective to identify the defendant as the shooter

from a video played in open court because the testimony was based on the detective’s

perception and was helpful to the jury, and the jury could see the video for

themselves.

Roth’s testimony regarding what transpired during Foster’s arrest was

based on a video that was played for the jury. The jury was free to agree or disagree

with Roth’s characterization of McInnes’s actions based on their own observations.

Therefore, the trial court did not err in allowing this testimony into evidence.

Roth’s testimony regarding McInnes’s interaction with Brown was

based on the video of a bystander, who recorded the event and posted it on social

media, and McInnes’s body-camera video, both of which were played for the jury.

Roth stated that Brown was on his knees and his hands were behind his back when

McInnes kicked him in the back, driving his head forward toward the wall. As with

the Foster incident, the jury was free to agree or disagree with Roth’s description

based on their own observation of the video evidence.

Roth further stated that when Brown got on his knees, he was

“vulnerable.” Roth further stated: “He put himself down on his knees and put his

hands behind his back, and now you see there is nothing in his hands. At that point,

you can execute the arrest just as he is.”
McInnes argues Roth’s opinion that Brown was “vulnerable” offered

nothing regarding the use of force and was merely an attempt to garner sympathy

for Brown. He further argues that Roth’s testimony “amounted to ‘should have’

testimony which is impermissible.” (Appellant’s brief p. 24.)

Roth’s testimony provided context, a permissible form of lay opinion.

In State v. Gale, 2011-Ohio-1236, ¶ 15 (8th Dist.), quoting State v. Crenshaw, 1992

Ohio App. LEXIS 2831 (8th Dist. June 4, 1992), we held that “‘[a] police officer may

testify to matters within his experience and to his own observations which may assist

the trier of fact in understanding other testimony.’” Similarly in State v. Garrett,

2022-Ohio-4218, ¶ 190-194, the Ohio Supreme Court held that a detective could

provide lay-opinion testimony regarding a victim’s knife wounds because the

detective’s opinion was “based on his experience in processing crime scenes” and

“on his experience as a homicide detective.” Id. at ¶ 191.

Roth’s explanation as to how McInnes could have arrested Brown

once he was down on his knees with his hands behind his back was based on his own

observations and his experience as a law-enforcement officer. His law-enforcement

experience could be helpful to the jury. Moreover, because the jury watched the

videos, they were able to judge the credibility of Roth’s commentary. We, therefore,

find no error in the admission of Roth’s testimony regarding McInnes’s interactions

with Brown.

When Roth was asked about his investigation of the Allen incident, he

began by stating:
So, due to the numerous criminal activities we’ve uncovered with the
city of East Cleveland Police Department, we established a tip line. So
once that tip line was established around October 6th, 2022, we
received a call from Da’Shawn Allen’s mother to report a crime against
her son.

(Tr. 1012.) McInnes argues this remark was unfairly prejudicial. However,

McInnes’s trial counsel did not object to this testimony. He, therefore, forfeited all

but plain error. State v. Rogers, 2015-Ohio-2459, ¶ 3, ¶ 21 (Failure to object to an

error in the trial court forfeits all but plain error on appeal.).

Crim.R. 52(B) authorizes appellate courts to correct “‘[p]lain errors or

defects affecting substantial rights’ notwithstanding the accused’s failure to meet his

obligation to bring those errors to the attention of the trial court.” State v. Mosby,

2024-Ohio-5210, ¶ 24 (8th Dist.), quoting Crim.R. 52(B). To prevail under a plain-

error analysis, the appellant bears the burden of demonstrating that, but for the

error, the outcome of the trial would clearly have been different. State v. Payne,

2007-Ohio-4642, ¶ 17.

Roth’s comment regarding “numerous criminal activities” was not

unfairly prejudicial to McInnes because Roth did not impute the criminal activities

to McInnes. The comment referred to criminal activities in the East Cleveland Police

Department. The jury also would have known about multiple alleged crimes within

the East Cleveland Police Department because they heard evidence of at least four

separate incidents involving two different East Cleveland police officers. Therefore,

even if this comment had not been made, it is doubtful the outcome of the trial would

have been different.
Nevertheless, McInnes also argues that Roth impermissibly testified

to the “ultimate issue” of whether McInnes kicked Allen in the groin. He contends

this was a disputed fact because of the poor quality of the video and because Allen

did not report being kicked in the groin. However, Allen, himself, testified at trial

that he was kicked in the groin. (Tr. 726.) His testimony was corroborated by the

video, which shows someone kicking Allen in the groin and Allen crying out in pain

immediately thereafter.

Roth explained how law enforcement determined the identity of the

individual who kicked Allen in the groin. When asked how he could tell that

McInnes was the individual who kicked Allen, Roth answered: “Because if you

continue the video, it will show his face. And, again, other officers that we talked to

after seeing this video did identify it as Ian McInnes.” (Tr. 1025.) Thereafter, the

prosecutor replayed the video for the jury and Roth testified:

Right there, if you go back a little bit, you will see the face. And there
are other indicators on there if you watch some of the other body cam,
as in Defendant Ian McInnes had a watch and another item on both of
his wrists[.]

(Tr. 1026.)

As previously stated, Evid.R. 701 allows a lay witness to offer an

opinion if the opinion is “(1) rationally based on the perception of the witness and

(2) helpful to a clear understanding of the witness’ testimony or the determination

of a fact in issue.” Evid.R. 701. In applying Evid.R. 701 to the lay testimony of a

police officer, this court has held:
To satisfy the first prong of Evid.R. 701, the opinion of the lay witness
must be “‘one that a rational person would form on the basis of the
observed facts.’” State v. Mulkey, 98 Ohio App.3d 773, 784 (10th Dist.
1994), quoting Lee v. Baldwin, 35 Ohio App.3d 47, 49 (1st Dist. 1987).
And where a law enforcement officer “testified as a lay witness to
opinions based on his experience as a police officer, his previous
investigations, and his perception of evidence at issue,” this first prong
is satisfied. State v. Walker-Curry, 2019-Ohio-147, ¶ 12 (8th Dist.),
citing State v. Grajales, 2018-Ohio-1124, ¶ 64 (5th Dist.).

The second prong of Evid.R. 701 requires that “the opinion . . . assist
the trier of fact in understanding the testimony of the witness or
determining a fact in issue.” State v. Sibert, 98 Ohio App.3d 412, 426
(4th Dist. 1994), citing Lee at 49. Under this prong, a police officer’s
opinion testimony may be admissible to explain a fact at issue even
when it is based on specialized knowledge. Walker-Curry at ¶ 13; State
v. Maust, 2016-Ohio-3171, ¶ 19 (8th Dist.).

Under Evid.R. 701, “courts have permitted lay witnesses to express
their opinions in areas in which it would ordinarily be expected that an
expert must be qualified under Evid.R. 702.” State v. Primeau, 2012-
Ohio-5172, ¶ 74 (8th Dist.), citing State v. McKee, 91 Ohio St.3d 292
(2001). And, generally, if testimony is based on an officer’s training
and experience, related to the officer’s personal observations during an
investigation, and helpful to determine facts in issue, the testimony is
properly admitted as lay testimony under Evid.R. 701. See Maust at
¶ 18.

State v. Harris, 2020-Ohio-4461, ¶ 51-53 (8th Dist.).

Roth’s testimony meets the first prong of Evid.R. 701 because it was

rationally based on his own perception of the video and other evidence related to the

incident. Roth’s testimony was also helpful to the jury because it explained a

relevant aspect of the police investigation and how Roth identified McInnes as the

individual who is seen kicking Allen in the video. Because Roth’s testimony could

assist the jury in understanding how police identified McInnes, it met the second
prong of Evid.R. 701. Therefore, Roth’s testimony was admissible under

Evid.R. 701.

Furthermore, Roth did not state that kicking Allen in the groin

constituted an unjustified and excessive use of force. He, therefore, did not

expressly opine on the ultimate issue regarding whether McInnes used excessive

force. We, therefore, find no error in the admission of this testimony into evidence.

1. Robert Prevot

Prevot testified as the State’s official use-of-force expert. Prior to

Prevot’s testimony, defense counsel objected to his testimony as an expert because

another Cuyahoga County court previously disqualified him as an expert. The

prosecutor conceded that Prevot had been disqualified in another case, but she

explained he was disqualified because the case involved bribery and he did not have

experience with bribery. (Tr. 1101.) However, he had almost 34 years of law-

enforcement experience. (Tr. 1093.) During that time, he was responsible for

investigating officer-involved shootings and use-of-force incidents. (Tr. 1094 and

1096.). He, therefore, had extensive experience with use-of-force cases, and his prior

disqualification had no bearing on the instant case.

Defense counsel nevertheless tried to discredit him because he was

not familiar with State v. White, 2015-Ohio-492. The issue in White was whether a

police officer could constitutionally be convicted of a firearm specification in Ohio.

Prevot was from California, which could explain why he was not familiar with this

particular aspect of Ohio law. (Tr. 1093.) Nevertheless, he was familiar with the
standard for assessing excessive force outlined in the landmark case of Graham v.

Connor, 490 U.S. 386 (1989). (Tr. 1097.) And, after reviewing Prevot’s credentials,

we finding nothing in the record to indicate that he lacked the necessary expertise

to address matters of excessive force.

Nonetheless, McInnes argues the trial court erred in allowing Prevot

to opine on an “ultimate issue” regarding his use of force during the arrest of Foster.

Reading from his expert report, Prevot testified as follows:

“The only use of force justified in this instance after he was tased was
to place handcuffs on Mr. Foster and assess him for any injuries that he
may have suffered in the collision. Instead, Officer McInnes used
excessive force to potentially cause further injury to Mr. Foster. The
use of force by Mr. McInnes when he kicked Mr. Foster was objectively
unreasonable.”

(Tr. 1114.) McInnes further argues that Prevot’s analysis constituted impermissible

“should have” testimony. Defense counsel did not object to this testimony and,

therefore, forfeited all but plain error. Rogers, 2015-Ohio-2459, at ¶ 3 and 21.

It is undisputed that Foster had just been in a car accident. Johnson’s

body-camera video showed Foster fall to the ground after being tased and that he

was still laying on the ground with his hands outstretched above his head when

McInnes approached him. (See State’s exhibit No. 100.) The jury watched the body-

camera video and could see McInnes’s foot make contact with Foster’s body.

Prevot opined that McInnes intentionally kicked Foster and that such

an act was “objectively unreasonable.” McInnes testified that he slipped and that he

did not intend to kick Foster. The jury was free to judge the credibility of the two
witnesses based on its own view of the body-camera video. Therefore, even if

Prevot’s opinion had been excluded, it would not have changed the outcome of the

trial.

McInnes argues Prevot’s testimony regarding McInnes’s interactions

with Brown also offered impermissible opinion testimony regarding an “ultimate

issue.” He contends Prevot provided improper “should have done” testimony and

impermissibly speculated that Brown was trying to cooperate. He objects to the

following testimony:

The problem is, when he gets kicked in the back, now he gets pushed
forward, and his hands are not cuffed yet. Now he can put his hands
back in front of him and become a threat again. Instead of just
handcuffing while he is on his knees, he was kicked and is pushed
forward, and now he can be a threat again.

(Tr. 1126.) This testimony explained why the kick in the back violated police training

and procedure; it prolonged the threat. This is appropriate expert testimony.

McInnes also objects to the following additional testimony:

Basically my opinion at that moment when he applied the force was
that it was objectively unreasonable. He could have just handcuffed
him, picked him up, and do what he’s going to do.

By kicking him and making him fall forward, he could have been a
threat again. I don’t know what purpose the kick served other than the
to cause pain. By process of elimination, there was nothing else to do,
except put him in handcuffs.

(Tr. 1126-1127.)
Defense counsel objected to the second part of this testimony, and the

court sustained the objection. (Tr. 1127.) Therefore, Prevot’s speculation that

McInnes kicked Brown solely to cause him pain was properly excluded.

Prevot’s opinion that McInnes’s use of force was objectively

unreasonable in the first part of the above-quoted testimony was not excluded.

However, he based his opinion on police policy and procedure. This is appropriate

expert testimony. And again, “[t]estimony in the form of an opinion or inference

otherwise admissible is not objectionable solely because it embraces an ultimate

issue to be decided by the trier of fact.” Evid.R. 704.

Finally, McInnes argues Prevot should not have been permitted to

opine that Brown was “trying to comply.” However, Prevot explained that Brown’s

delayed responses suggested mental disability, which officers are trained to

recognize and to de-escalate. This information would likely have been “beyond the

knowledge or experience” of the lay members of the jury and would help them to

understand the proper police procedure that should have been followed. Therefore,

it was not improper and did not warrant exclusion.

McInnes argues Prevot’s testimony regarding the Allen incident also

provided impermissible “ultimate issue” testimony. He contends Prevot

inappropriately stated that McInnes kicked Allen in the groin and that Allen

screamed in response. (Tr. 1138.) He contends this testimony ignored the fact that

Allen had just crashed his car and “any movement could have caused a scream.”

(Appellant’s brief p. 27.) He further argues that “Prevot’s opinion testimony was the
result of perceptions after watching the video, something the jury was capable of

doing on their own without the need for assistance from him.” (Appellant’s brief

p. 27.) Defense counsel did not object to this testimony and, therefore, forfeited all

but plain error. Rogers, 2015-Ohio-2459, at ¶ 3 and ¶ 21.

We agree the jury was capable of determining whether Allen’s scream

was caused by a kick in the groin or something else. Therefore, the outcome of the

trial would not have been different if Prevot had not offered that opinion.

However, McInnes further argues Prevot was erroneously allowed to

read the following opinion from his expert report regarding McInnes’s intent:

A: “A review of the body-worn camera in this case showed Officer
McInnes kicking Mr. Allen in the groin. Mr. Allen was already subdued
and was not resisting or threatening anyone when he was intentionally
kicked in the groin by Officer McInnes.”

THE COURT: Overruled. Go ahead.

A: This assault was intentional, objectively unreasonable, and a
violation of Mr. Allen’s civil rights. Mr. Allen screamed out in pain after
he was kicked.

THE COURT: Overruled.

A: “And there was absolutely no justification by Officer McInnes to
cause that level of pain and suffering.”

(Tr. 1141.) McInnes argues this testimony impermissibly usurped the province of

the jury. However, both McInnes and his expert, Davis, conceded that McInnes

intentionally kicked Allen. Davis stated: “I was unable to confirm that it was a kick
to the groin or the genitals. It was definitely a kick to the upper leg.” (Tr. 1612.) He

further stated that a kick to the groin might be appropriate in situations where a

suspect is “actively assaulting” the officer but he admitted Allen was not actively

assaulting anyone at the time he was kicked. (Tr.1614-1615.)

McInnes admitted he was the individual seen approaching Allen in

Johnson’s body-camera video while he was being restrained by other officers and

that he made contact with Allen’s “upper thigh.” (Tr. 1727.) He stated:

A: My intent was to place my leg there to keep him from rolling or
moving. It was not intended to be a strike.

Q: Again, we’re saying this is not a use of force?

A: At the time, I did not believe it was.

(Tr. 1728.) Prevot’s expert testimony was useful to explain that an intentional kick

to the groin was not consistent with accepted police practices. To that extent, it was

admissible under Evid.R. 702 and 704. Because McInnes and Davis admitted that

the kick was intentional, Prevot’s opinion that the kick was intentional was harmless

even if the testimony had been admitted in error. Moreover, Davis agreed that an

intentional kick to the groin would be unjustified in Allen’s situation because he was

not actively assaulting a police officer. (Tr. 1614-1615.)

The only disputed issue was what part of Allen’s body was struck by

McInnes. To determine that issue, the jury heard the competing testimonies of

Prevot, Davis, and McInnes. They also heard the testimony of Allen himself, who

stated that he was kicked in his “private part” and that he screamed in pain.
(Tr. 726-727.) The jury was free to judge each witness’s credibility based on their

own viewing of the body-camera video. We, therefore, find no error in Prevot’s

testimony.

1. Robert DeSimone

Similar to Roth, DeSimone offered lay testimony regarding the

investigation into corruption within the East Cleveland Police Department. As part

of the investigation, the FBI established a tip line for citizens to report criminal acts,

and DeSimone stated that he checked the tip line daily because there were “so many

complaints.” (Tr. 1224.) McInnes argues this testimony did not offer any value

“other than to impermissibly prejudice the jury against McInnes.” (Appellant’s brief

p. 28.) McInnes did not object to this testimony and, therefore, forfeited all but plain

error. Rogers, 2015-Ohio-2459, at ¶ 3 and ¶21.

As previously stated with regard to Roth’s testimony, the comments

regarding criminal activities within the East Cleveland Police Department were not

attributed to McInnes personally. Although both Roth and DeSimone described

widespread corruption in East Cleveland, they also testified that Scott Gardner,

Chief of the East Cleveland Police Department, cooperated with Roth’s and

DeSimone’s investigation, reported incidents for investigation, and gave them

access to the department’s body-camera system. (Tr. 994-995, 1029, 1033, and

1222-1224.) This evidence would suggest that not all officers in the East Cleveland
Police Department were corrupt.4 DeSimone also stated that they had to gather all

the information they received from multiple sources before jumping to conclusions

about an allegation because they needed to be fair to both sides. (Tr. 1223.)

Police are generally allowed to explain the course of their

investigations. See, e.g., State v. Jackson, 2007-Ohio-2925 (8th Dist.), ¶ 30.

Moreover, the jury would have known of multiple alleged crimes within the East

Cleveland Police Department without the testimony regarding the tip line and

widespread corruption because they heard evidence of at least four separate

incidents involving two different East Cleveland police officers. Therefore, it is

doubtful the outcome of the trial would have been different if DeSimone had not

mentioned the reports of alleged crimes to the tip line.

McInnes argues he was prejudiced when DeSimone referred to the

Brown incident as an “assault,” implying that he was guilty of a crime. DeSimone

explained that he became aware of the Brown incident “because that video of the

assault was on social media [.]” (Tr. 1233.) McInnes’s trial counsel did not object to

this testimony and, therefore, forfeited all but plain error. Rogers, 2015-Ohio-2459,

at ¶ 3 and 21.

Although the word “assault” is a statutorily-defined crime, it is not a

legal term of art. It is common word in the English language used to describe “a

violent physical or verbal attack.” Dictionary.com, “assault” available at

4 Chief Gardner was under indictment at the time of trial. (Tr. 53, and 57-58.)
However, that fact was not disclosed to the jury.
https://www.merriam-webster.com/dictionary/assault (accessed Jan 21, 2026)

[https://perma.cc/CTC9-KVLQ]. Moreover, McInnes raised the affirmative

defense that he was justified in the use of force, which implies an admission to the

“assault.” Therefore, McInnes cannot demonstrate he was prejudiced by

DeSimone’s use of the word “assault.”

McInnes argues DeSimone implied that McInnes was not truthful

when he authored a report stating that Allen struck another officer’s police cruiser

by “brake-checking” the officer. (Tr. 1242.) McInnes contends DeSimone’s

testimony regarding the police report “undermined Mr. McInnes’s truthfulness and

character which were not at issue and was thus impermissible.” (Appellant’s brief

p. 28.)

However, DeSimone was not commenting on McInnes’s credibility

when he was discussing this aspect of his investigation. He was merely describing

the narrative contained in a police report, the authenticity of which was stipulated

to by the parties and admitted into evidence without objection as State’s exhibit

No. 320. (Tr. 1256.) He explained that when someone alleges that a suspect

intentionally struck a police vehicle, the collision would be investigated as an

“attempted felonious assault.” (Tr. 1254.) And when police investigated the

allegation, they found that the report was not consistent with the available video

evidence of the incident. (Tr. 1258.) Allen also testified earlier that the police were

“bumping” his car while they were pursuing him. (Tr. 723.) But DeSimone never

accused McInnes of lying in the report, and McInnes was never charged with any
crime with respect to the report. The testimony was clear that if anyone was lying

about the report, it would have been codefendant Anthony Holmes, who told

McInnes that Allen “brake checked” him. DeSimone did not question that McInnes

was merely reporting what he had been told by Holmes.

McInnes nevertheless argues that DeSimone provided impermissible

“ultimate issue” testimony regarding the Allen incident when he testified that

McInnes could be seen in a body-camera video “squarely kicking” Allen in the groin.

(Tr. 1273.) He also stated that Allen could be heard crying out in pain. (Tr. 1275.)

Again, defense counsel did not object to this testimony and, therefore, forfeited all

but plain error. Rogers, 2015-Ohio-2459, at ¶ 3 and ¶ 21.

However, as previously discussed, both McInnes and his expert,

Davis, admitted that McInnes kicked Allen. The only disputed issue was what part

of Allen’s body was struck by McInnes. In resolving this issue, the jury considered

the competing testimonies of DeSimone, Prevot, Davis, and McInnes. They also

heard the testimony of Allen himself, who stated that he was kicked in his “private

part” and that he screamed in pain. (Tr. 726-727.) The jury was free to judge each

witness’s credibility based on their own viewing of the body-camera video. We,

therefore, find no error in DeSimone’s testimony.

Finally, McInnes argues that DeSimone was improperly allowed to

offer opinions regarding Brown’s mental state. He referred to Brown as “being in a

confused state” and that Brown could not verbalize or explain what he was doing

there. (Tr. 1353-1354.) McInnes argues this testimony “was an attempt to garner
sympathy for Brown and amounted to hindsight testimony of what Mr. McInnes

should have done under the circumstances, which is impermissible testimony.”

(Appellant’s brief p.29.) However, because defense counsel did not object to this

testimony, McInnes forfeited all but plain error. Rogers at ¶ 3 and ¶ 21.

DeSimone’s testimony that Brown was confused was duplicative of

testimony previously provided by Prevot. (Tr. 1120, 1127.) The fact that Brown was

confused is also corroborated by the video evidence of the Brown incident.

Therefore, we cannot say that the outcome would have been different had DeSimone

not stated that Brown was confused.

The third assignment of error is overruled.

D. Manifest Weight of the Evidence

In the fourth assignment of error, McInnes argues his convictions are

against the manifest weight of the evidence.

In determining whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of the witnesses, and

determine whether in resolving conflicts in the evidence, the trier of fact clearly lost

its way and created such a miscarriage of justice that the conviction must be reversed

and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). We

will reverse a conviction as against the manifest weight of the evidence “‘only in the

exceptional case in which the evidence weighs heavily against the conviction.’” State

v. McLoyd, 2023-Ohio-4306, ¶ 40 (8th Dist.), quoting Thompkins at 387.
1. Zievan Foster

McInnes argues the jury lost its way in finding him guilty of assault,

dereliction of duty, and violation of civil of civil rights in connection with his arrest

of Foster on February 25, 2020. He contends the jury was led astray by the State’s

“experts” who were erroneously allowed to testify that McInnes intentionally kicked

Foster while he was “proned out” on the ground. He further argues that had it not

been for the State’s experts’ testimony, the jury would have believed McInnes’s

testimony that he slipped and that he struck Foster with his foot by accident.

However, we previously determined that the testimonies of Roth, Prevot, and

DeSimone were properly admitted as lay and expert-opinion testimony under

Evid.R. 701, 702, and 704. Therefore, McInnes’s argument that his convictions are

against the weight of the evidence because they are based on inadmissible evidence

is without merit.

Furthermore, the jury viewed Johnson’s body-camera video of the

incident. After viewing the body-camera footage, they were free to decide for

themselves whether they believed McInnes’s testimony that he struck Foster by

accident or whether he used excessive force without justification. Based upon our

own review of the body-camera video and the trial testimony, we cannot say that the

jury lost its way in finding McInnes guilty of the assault, interfering with civil rights,

and dereliction of duty as a result of his actions vis-à-vis Foster.
2. Wayne Brown

The jury found McInnes guilty of attempted felonious assault,

assault, interfering with civil rights, and dereliction of duty in connection with his

apprehension of Brown on February 14, 2022. With respect to these convictions,

McInnes again argues that the State’s “experts,” Roth, Prevot, and DeSimone,

provided inadmissible evidence that misled the jury. But because their testimony

was properly admitted into evidence, this argument lacks merit.

Moreover, as with the Foster incident, the video of the Brown

incident was the best evidence. It unequivocally shows Brown on his knees with his

hands behind his back when McInnes forcefully kicked him in the back, slamming

his head down to the ground. Anyone who watches this video could conclude that

the force used to kick Brown was excessive and unnecessary under the

circumstances. Therefore, McInnes’s argument that his convictions arising from the

Brown incident are against the manifest weight is without merit.

1. Da’Shawn Allen

McInnes argues the jury lost its way in convicting McInnes of assault,

interfering with civil rights, and dereliction of duty in connection with his arrest of

Allen on October 3, 2021. He contends his convictions are against the manifest of

the evidence because his expert, Davis, disagreed that the video of the incident

showed McInnes kicking Allen in the groin. Davis stated: “I don’t see enough in the

video to say that Officer McInnes intentionally struck the genitals or the groin area.”

(Tr. 1543.) He also asserts that “Allen himself did not even recall that he was kicked
in the genitals, which was undeniable evidence that no such kick occurred.”

(Tr. 787.) Finally, McInnes asserts that “[h]ad the court prevented the State’s

‘experts’ from giving their opinions about what the video portrayed, the jury could

have been allowed to reach their own conclusions about what they saw.”

(Appellant’s brief p. 35.)

However, again, the body-camera video of the incident is the best

evidence. It shows an officer approach Allen, who was lying on the ground, and kick

him in the groin area. (See State’s exhibit No. 301.) The identity of the officer who

kicked Allen was not immediately clear from the video. However, as Roth explained,

McInnes’s face appears in the video shortly after the kick occurred. Moreover, as

mentioned previously, McInnes and Davis both conceded that McInnes was the

officer who kicked Allen. They merely disputed whether he kicked Allen in the groin

or on the upper thigh. (Tr. 1546 and 1727.) Therefore, McInnes’s convictions are

not against the manifest weight of the evidence.

The fourth assignment of error is overruled.
E. Sufficiency of the Evidence5

In the fifth assignment of error, McInnes argues the evidence was

legally insufficient to support his convictions.

The test for sufficiency requires a determination as to whether the

prosecution met its burden of production at trial. State v. Bowden, 2009-Ohio-

3598, ¶ 12 (8th Dist.). 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.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

1. Qualified Immunity

McInnes first argues the court should have granted his motion for

acquittal under Crim.R. 29 because the evidence supported a finding that he acted

reasonably and, therefore, he was entitled to qualified immunity. However, as

previously stated, the defense of qualified immunity applies only in civil cases and

is inapplicable to criminal prosecutions. See Imbler, 424 U.S. at 429; Gillock, 445

U.S. at 372; and Graham, 2024-Ohio-336, at ¶ 74 (8th Dist.). Therefore, the trial

5 Within this assigned error, McInnes originally included an argument that because

felonious assault under R.C. 2903.11(A)(2) is an offense which itself prohibits attempt, it
cannot serve as a predicate offense under the attempt statute, R.C. 2923.02. McInnes
withdrew this argument presumably because McInnes was not charged under
R.C. 2903.11(A)(2); he was charged under R.C. 2903.11(A)(1), which does not require
proof of an attempt to commit serious physical harm. See State v. Brabson, 2014-Ohio-
5277, ¶ 10-11 (8th Dist.) (holding that because R.C. 2903.11(A)(1) does not require proof
of an attempt to commit serious physical harm, a jury could find the defendant guilty of
the lesser included offense of attempted felonious assault under R.C. 2903.11(A)(1) and
2923.02(A), the attempt statute).
court did not err in denying his motion for acquittal on grounds that McInnes was

not entitled to qualified immunity.

1. Allen Incident

McInnes further argues his convictions resulting from the Allen

incident were not supported by the evidence. He asserts “there was insufficient

evidence that Allen was even kicked in the groin because of the poor quality of the

video” and that “the trial testimony of Allen should have been disregarded as he

identified another officer as the person who allegedly kicked him.” These arguments

relate to the weight rather than the sufficiency of the evidence. Moreover, McInnes

and his expert, Davis, admitted that McInnes kicked Allen.

Therefore, the fifth assignment of error is overruled.

F. Confrontation Clause

In the sixth assignment of error, McInnes argues his right to confront

his accusers guaranteed under the Confrontation Clause of the Sixth Amendment to

the United States Constitution was violated when the trial court did not compel

Brown to testify during the State’s case-in-chief. He contends Brown’s absence from

trial allowed the State’s witnesses to provide prejudicial and speculative testimony

regarding the reasonableness of McInnes’s conduct.

The Sixth Amendment to the United States Constitution states: “In

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 (2004), the
United States Supreme Court held that the Confrontation Clause bars the admission

of “testimonial statements of witnesses absent from trial.” Id. at 59.

Although Brown was absent from trial, no statements from Brown,

testimony or otherwise, were offered into evidence at trial. Therefore, the

Confrontation Clause was not implicated. Furthermore, McInnes was able to cross-

examine the State’s witnesses that he claims provided prejudicial and speculative

testimony. Therefore, there was no violation of the Confrontation Clause and the

sixth assignment of error is overruled.

G. Garrity Violation

In the seventh assignment of error, McInnes argues his right to a fair

trial was violated when the State used his “Form M” Garrity statement to impeach

him. During the testimony regarding the Foster incident, Beese testified that he

asked McInnes to complete a “Form M” use-of-force report after viewing Johnson’s

body-camera video “because it appeared he used force.” (Tr. 698.) McInnes argues

the use of the Form M during trial constituted a Garrity violation pursuant to

Garrity v. New Jersey, 385 U.S. 493 (1967).

In Garrity, the state attorney general investigated police officers for

fixing traffic tickets. Although the officers were advised of their right to remain

silent, they also were told that refusing to answer questions would lead to the

termination of their employment. The officers chose to answer the questions, and

the State used some of their answers against them in a subsequent criminal case.

The United States Supreme Court held that the officers’ confessions had been
compelled in violation of the Fifth and Fourteenth Amendments to the United States

Constitution. Id. at 496-497. The Court observed “[t]he option to lose their means

of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice

to speak out or to remain silent.” Id. at 497. Thus, the Court held that the officers’

confessions were not voluntary but coerced and that the Fourteenth Amendment

prohibited the use of the statements in subsequent criminal proceedings. Id. at 497-

498, 500.

Although Beese asked McInnes to complete a Form M, there is no

evidence that he was threatened or otherwise compelled to do so. “[F]or a statement

to be suppressed under Garrity, the employee claiming coercion must have believed

that his or her statement was compelled on threat of job loss and this belief must

have been objectively reasonable.” State v. Graham, 2013-Ohio-2114, ¶ 24. See also

State v. Gideon, 2020-Ohio-6961, ¶ 15.

McInnes testified regarding the Form M, but he never mentioned

being coerced or that his job was threatened if he were to refuse. (Tr. 1656.) Courts

have held that routine reports completed in the ordinary course of duty are not

Garrity-compelled. See, e.g., United States v. Cook, 526 F.Supp.2d 1, 8-9 (D.D.C.

2007); United States v. Rioz Ruiz, 579 F.2d 670, 675-676 (1st Cir. 1978). There is,

therefore, no evidence of a Garrity violation.

The seventh assignment of error is overruled.
H. Grand-Jury Transcripts

In the eighth assignment of error, McInnes argues the trial court

erred in denying his request for grand-jury transcripts. He contends the transcripts

were necessary to ensure that the grand jury applied the proper probable cause

standard and to reveal possible Garrity violations.

We review a trial court’s decision on whether to disclose grand-jury

transcripts for an abuse of discretion. State v. Coley, 93 Ohio St.3d 253, 261 (2001),

citing State v. Brown, 38 Ohio St.3d 305, 308 (1988).

Grand-jury proceedings are secret. Crim.R. 6(E). There is no right

to inspect grand-jury transcripts unless there is a showing of a particularized need

for disclosure that outweighs the need for secrecy. State v. Greer, 66 Ohio St.2d 139

(1981), paragraph two of the syllabus. Speculation is not sufficient. State v. Rackley,

2023-Ohio-4656, ¶ 17 (8th Dist.)

A particularized need exists when consideration of the surrounding

circumstances shows “it is probable that the failure to disclose the testimony will

deprive the defendant of a fair adjudication of the allegations placed in issue by the

witness’ trial testimony.” Greer at paragraph three of the syllabus. The

determination of whether a particularized need exists is a question of fact. Id.

“[A]n indictment valid on its face” is not subject to challenge based

“on the reliability or competence of the evidence presented to the grand jury.” Bank

of Nova Scotia v. United States, 487 US 250, 261 (1988), citing United State v.

Calandra, 414 U.S. 338, 344-345 (1974). Similarly, a facially valid indictment
returned by a properly constituted grand jury “conclusively determines the existence

of probable cause.” Gerstein v. Pugh, 420 U.S. 103, 117 (1975).

McInnes argues he needed the grand-jury transcripts for two

reasons: (1) to determine whether the grand jury was properly instructed as to the

elements of the offenses charged or whether they concluded that his actions were

objectively unreasonable under Graham, 490 U.S. at 386, and (2) to determine

whether the State’s witnesses impermissibly used McInnes’s Garrity statements.

However, as previously stated, because there was no evidence of coercion when

McInnes completed the Form M, there were no Garrity statements and, therefore,

no Garrity violation. McInnes’s concern as to whether the jury was properly

instructed as to the elements of the offenses or whether they considered his actions

objectively unreasonable under Graham is mere speculation, not a particularized

need. Moreover, even if the grand jury had been erroneously instructed, the error

would be harmless since a petit jury subsequently found him guilty beyond a

reasonable doubt under the correct standard. United States v. Mechanik, 475 U.S.

66, 71-73 (1986).

Therefore, the eighth assignment of error is overruled.

I. Sentencing

In the ninth assignment of error, McInnes argues his sentence is not

supported by the record and is contrary to law.

We review felony sentences under the standard of review set forth in

R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 22-23. Under
R.C. 2953.08(G)(2), an appellate court may increase, reduce, or otherwise modify a

sentence or vacate a sentence and remand for resentencing if it “clearly and

convincingly” finds that (1) the record does not support certain of the sentencing

court’s findings or (2) the sentence is “otherwise contrary to law.”

“A sentence is contrary to law if (1) the sentence falls outside the

statutory range for the particular degree of offense, or (2) the trial court failed to

consider the purposes and principles of sentencing set forth in R.C. 2929.11 and the

sentencing factors set forth in R.C. 2929.12.” State v. Evans, 2021-Ohio-3679, ¶ 12

(8th Dist.).

A sentence is not clearly and convincingly contrary to law if “the trial

court considers the purposes and principles of sentencing under R.C. 2929.11 as well

as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies

post-release control, and sentences a defendant within the permissible statutory

range.” State v. A.H., 2013-Ohio-2525, ¶ 10 (8th Dist.).

R.C. 2929.11 addresses the overriding purposes of felony sentencing,

and R.C. 2929.12 enumerates certain factors the court must consider when imposing

a sentence. State v. Jones, 2020-Ohio-6729, ¶ 18-19. Under R.C. 2929.11(A), the

overriding purposes of felony sentencing are to (1) “protect the public from future

crime by the offender and others,” (2) “punish the offender,” and (3) “promote the

effective rehabilitation of the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on

state or local government resources.”
The sentence must be “commensurate with and not demeaning to

the seriousness of the offender’s conduct and its impact upon the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.11(B). The sentencing court has discretion to determine the

best way to comply with the purposes and principles of sentencing set forth in

R.C. 2929.11. State v. Bridges, 2019-Ohio-1769, ¶ 10 (8th Dist.).

R.C. 2929.12 sets forth a nonexhaustive list of factors the trial court

must consider in assessing the seriousness of the offender’s conduct and the

likelihood of recidivism, including whether the physical or mental injury suffered by

the victim of the offense due to the conduct of the offender was exacerbated because

of the physical or mental condition or age of the victim and whether the offender

held a public office or position of trust in the community and the offense related to

that office or position. R.C. 2929.12(B)(1) and (4).

R.C. 2929.12(C) sets forth factors indicating when the offender’s

conduct is less serious than conduct normally constituting the offense, including

whether, in committing the offense, the offender did not cause or expect to cause

physical harm to any person or property and whether there are substantial grounds

to mitigate the offender’s conduct, although the grounds are not enough to

constitute a defense.

R.C. 2929.11 and 2929.12 are not factfinding statutes. Therefore,

although the trial court must consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the sentencing factors listed in R.C. 2929.12,
the court is not required to make findings or give reasons for imposing more than

the minimum sentence. State v. Pavlina, 2013-Ohio-3620, ¶ 15 (8th Dist.), citing

State v. Foster, 2006-Ohio-856. A trial court’s general statement that it considered

the required statutory factors, without more, is sufficient to fulfill its obligations

under the sentencing statutes. Id., citing State v. Wright, 2011-Ohio-733, ¶ 4 (8th

Dist.). Consideration of the factors is presumed unless the defendant affirmatively

shows otherwise. State v. Wright, 2018-Ohio-965, ¶ 16 (8th Dist.), citing State v.

Keith, 2016-Ohio-5234, ¶ 11 (8th Dist.).

McInnes argues the trial court erred in imposing a 30-month prison

term on his attempted-felonious-assault conviction, which arose out of his

apprehension of Brown. He also argues “the court erroneously imposed a

concurrent 180-day sentence on each and every misdemeanor conviction.”

(Appellant’s brief p. 50.) He contends the alleged conduct in the Brown, Allen, and

Foster incidents did not support the imposition of any jail sentence. Finally, he

asserts that the trial court “failed to consider the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and 2929.12.” (Appellant’s brief p. 51.)

Despite McInnes’s argument to the contrary, the trial court expressly

stated that it considered the purposes and principles of felony sentencing when it

fashioned McInnes’s sentence. (Tr. 1966-1968.) After considering the relevant

sentencing statutes, the court stated that it “finds that a prison sentence is consistent

with the principles and purposes of felony sentencing.” (Tr. 1968.)
McInnes’s attempted felonious-assault conviction was a third-

degree felony in violation of R.C. 2923.02 and 2903.11(A)(1). R.C. 2929.14(A)(3)(b)

provides that the sentencing range for this kind of third-degree felony “shall be a

definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.”

Therefore, the 30-month prison term imposed on McInnes’s third-degree felony is

within the statutory range for conviction. It is, therefore, not contrary to law. The

180-day sentences imposed on each of the first-degree misdemeanor convictions are

also authorized by law and are not contrary to law. R.C. 2929.24(A)(1).

The sentences imposed on McInnes’s convictions are supported by

the record. McInnes contends that Brown was not injured by the attempted

felonious assault. However, Brown suffered from a mental illness and his civil rights

were violated regardless of whether he suffered a serious physical injury. It is also

relevant that McInnes committed the offense in his position as a police officer, a

position of trust in the community. The record also showed a pattern of

aggressiveness and abuse of his position. The court did not impose consecutive

sentences, nor did it impose the maximum sentence authorized by law. The

sentences seem reasonably tailored to punish and rehabilitate McInnes using “the

minimum sanctions the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” We,

therefore, find no error in the sentences imposed.

The ninth assignment of error is overruled.

Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, A.J., and
MICHAEL JOHN RYAN, J., CONCUR