State v. Bailey , 2012 Ohio 3356 ( 2012 )


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  • [Cite as State v. Bailey, 
    2012-Ohio-3356
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97330
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    DECO BAILEY
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-543223
    BEFORE: Boyle, J., Blackmon, A.J., and Celebrezze, J.
    RELEASED AND JOURNALIZED:                        July 26, 2012
    2
    ATTORNEYS FOR APPELLANT
    Joseph C. Patituce
    Megan M. Patituce
    Patituce & Associates, LLC
    26777 Lorain Road
    Suite 708
    North Olmsted, Ohio 44070
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Lauren Bell
    Assistant County Prosecutor
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    3
    MARY J. BOYLE, J.:
    {¶1} Defendant-appellant, Deco Bailey, appeals his conviction for drug trafficking
    and drug possession. We affirm.
    Procedural History and Facts
    {¶2} In October 2010, Bailey was indicted on three counts: (1) trafficking, in
    violation of R.C. 2925.03(A)(2); (2) drug possession, in violation of R.C. 2925.11(A); and
    (3) possession of criminal tools, in violation of R.C. 2923.24(A). All three counts carried
    a forfeiture specification for the $103 recovered from Bailey. Bailey pleaded not guilty
    to the charges, and the matter proceeded to a jury trial.
    {¶3} According to the state’s witnesses, the events leading to Bailey’s arrest on
    October 14, 2010, are as follows:    Det. Gerald Crayton received a tip from a confidential
    reliable informant (“CRI”), prompting him to radio Sgt. Brandon Kutz and Officer Brian
    Moore.    Det. Crayton instructed the men to head to East 124th Street and Superior
    Avenue and “look out for a gold Chevy Tahoe” in a convenience store parking lot.
    According to Officer Moore, they had information given to them “that there was a Chevy
    Tahoe in the area of 124th and Superior that had a large bag of crack cocaine and possibly
    a gun in the vehicle.”     Sgt. Kutz likewise testified that they learned from the radio
    broadcast that “the male was in the parking lot in the vehicle and he had possession of
    crack cocaine and a weapon.”
    4
    {¶4} Det. Crayton informed the officers that the Chevy Tahoe had left the parking
    lot and was heading southbound on Rosa Parks Boulevard. Sgt. Kutz and Officer Moore
    located the Chevy Tahoe on Rosa Parks stopped in the middle of the street, straddling both
    lanes of traffic.   They activated their lights and sirens to pull the vehicle over.
    According to Officer Moore and Sgt. Kutz, once they activated their lights and sirens, the
    vehicle rolled for approximately 50 to 60 feet.   With their weapons drawn, the officers
    approached the vehicle, ordering the occupants to put their hands out the window.
    Officer Moore testified that the driver, later identified as Bailey, was not initially
    complying with their commands.       Officer Moore opened the driver’s-side door and
    immediately handcuffed Bailey and then patted him down for weapons.
    {¶5} Craig Kelly was seated in the front seat. Sgt. Kutz opened the front seat
    passenger-side door and discovered 3.07 grams of crack cocaine in a plastic bag on the
    floor between Kelly’s right foot and the door. Sgt. Kutz handcuffed Kelly and patted him
    down for weapons.
    {¶6} No weapons were found on either occupant, but $103 was recovered from
    Bailey.
    {¶7} At trial, Sgt. Kutz testified that Kelly immediately denied that the crack
    cocaine belonged to him, claiming that Bailey “must have thrown it at my feet or towards
    me.”
    5
    {¶8} The state also offered the testimony of Kelly at trial, who stated that he was a
    “longtime” friend of Bailey.         According to Kelly, he flagged down Bailey and
    accompanied him to a corner store.      At the corner store, Kelly got out of the vehicle “for
    a minute to speak to somebody and came back to the truck.”         Kelly testified that Bailey
    “stayed in the parking lot” but did not go into the store. After they departed the parking
    lot, Kelly testified that “police came from everywhere.”          Upon complying with the
    officers’ order to place his hands out the window, Kelly looked down and saw a bag on the
    floor of the car by his seat.   He testified that he did not see any bag upon entering the car
    the first time or exiting and entering again from the corner store — he first saw the bag
    when the police activated their lights and sirens.
    {¶9} Kelly further testified that he got in the car with Bailey hoping to get some
    crack cocaine from him but that he never had the opportunity to ask.       He acknowledged
    that he did not have any money on him but that he was hoping to get some free crack.
    {¶10} On cross-examination, Kelly, who has a felony record involving
    unauthorized use of a motor vehicle, receiving stolen property, and breaking and entering,
    admitted that he negotiated a plea bargain to substantially reduce his potential sentence in
    this case as well as another pending case in exchange for his testimony against Bailey.
    He further admitted that he would do “anything to avoid prison.”
    {¶11} Det. Crayton testified that based on his experience dealing with thousands of
    arrests related to crack cocaine, 3.07 grams of crack cocaine “was consistent with someone
    6
    who was selling, trafficking.”    He testified that the crack cocaine recovered was large
    enough to “at least cut * * * 20 times.”
    {¶12} The jury acquitted Bailey of the possession of the criminal tools count and
    found that the state failed to carry its burden with respect to the forfeiture specifications.
    The jury found Bailey guilty of the remaining counts of possession of drugs and drug
    trafficking.     The trial court merged the two counts at sentencing and imposed an
    18-month sentence.
    Assignments of Error
    {¶13} Bailey appeals, raising the following ten assignments of error:
    “I.     The government’s lawyer engaged in, and committed prosecutorial misconduct
    by intentionally misleading the jury to believe facts that were both false and never
    introduced into evidence.
    “II.      The government’s lawyer engaged in, and committed prosecutorial
    misconduct by repeatedly vouching for the credibility of a witness; specifically, the
    co-defendant.
    “III.    The defendant was denied due process of law where the court denied
    defendant’s motion to reveal the confidential informant.
    “IV.     The defendant was denied due process of law where the court (1) denied
    defendant’s motion in limine to prevent the state from presenting evidence as to what a
    7
    confidential informant told a detective and (2) overruled defendant’s objection to that
    testimony, all in violation of Crawford v. Washington.
    “V.      The defendant was denied due process of law when the court granted the
    state’s motion to consolidate where the state’s motion was (1) untimely, (2) resulted in
    substantial prejudice to defendant, and (3) was not admissible as ‘other acts’ evidence or
    ‘simple and direct’ evidence.
    “VI.     The defendant was denied due process of law where the court denied
    defendant the ability to question the officer as to the co-defendant’s criminal record
    pursuant to Ohio Evidence Rule 801(D)(2)(e).
    “VII.     The defendant was denied due process of law where the court denied
    defendant’s motion for a mistrial due to prosecutorial misconduct.
    “VIII.     The defendant was denied due process of law when the court denied
    defendant’s motion to suprress where the officers engaged in an impermissible arrest
    pursuant to Terry v. Ohio.
    “IX.     The defendant was denied due process of law where his conviction was not
    supported by legally sufficient evidence.
    “X.      The defendant was denied due process of law where his conviction was
    against the manifest weight of the evidence.”
    {¶14} For the ease of discussion, we will address these assignments of error
    together and out of order where appropriate.
    8
    Motion to Suppress
    {¶15} Bailey argues in his eighth assignment of error that the trial court erred in
    denying his motion to suppress. He contends that the police exceeded the scope of an
    investigatory stop and improperly arrested him based solely “on the word of a CI.” We
    find that his argument lacks merit.
    {¶16} A motion to suppress presents a mixed question of law and fact.            State v.
    Burnside, 
    100 Ohio St.3d 152
    , 
    2003-Ohio-5372
    , 
    797 N.E.2d 71
    , ¶ 8.
    When considering a motion to suppress, the trial court assumes the role of
    trier of fact and is therefore in the best position to resolve factual questions
    and evaluate the credibility of witnesses. * * * Consequently, an appellate
    court must accept the trial court’s findings of fact if they are supported by
    competent, credible evidence. * * * Accepting these facts as true, the
    appellate court must then independently determine, without deference to the
    conclusion of the trial court, whether the facts satisfy the applicable legal
    standard.
    (Citations omitted.) 
    Id.
    {¶17} Under Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S.Ct. 1868
    , 
    20 L.Ed.2d 889
     (1968), a
    law enforcement officer must have a reasonable suspicion, based on specific and
    articulable facts, that a motorist is or has been engaged in criminal activity before stopping
    a vehicle. State v. Davenport, 8th Dist. No. 83487, 
    2004-Ohio-5020
    . An officer is
    justified in making an investigative stop if the specific and articulable facts available to an
    officer indicate that a motorist may be committing a criminal act, which includes the
    violation of a traffic law. 
    Id.
    9
    {¶18} Initially, we note that Bailey is not challenging the police’s authority to stop
    his vehicle and conduct an investigatory stop.        Instead, he complains that the officer’s act
    of pulling him out of the vehicle and placing him in handcuffs based solely on a tip from
    an informant was unlawful. But Bailey’s argument misstates the facts of the record.
    {¶19} Here, the evidence at the suppression hearing revealed that the police
    received a tip from a CRI, a person that the police worked with in approximately 50 to 60
    prior cases, that directed them to Rosa Parks Boulevard, in search of a gold Chevy Tahoe.
    The police believed that there was crack cocaine and possibly a weapon inside the vehicle.
    The police encountered the vehicle stationary in the middle of the street, straddling two
    lanes of traffic.    This traffic violation alone justified the police activating their sirens and
    lights.    The police further testified that once they activated their lights, the vehicle began
    to move forward, ignoring their commands to stop. Officer Moore also testified that the
    driver did not immediately place his hands out the window despite the order to do so.
    Based on these facts, Officer Moore approached cautiously with his gun drawn.                 He
    further immediately pulled Bailey out of the car, concerned that he may have had a
    weapon.
    {¶20} Under the totality of the circumstances, we find no violation of the Fourth
    Amendment.          The police acted reasonably — the display of arms was reasonably
    necessary for the protection of the officers in this case. See United States v. Hardnett, 
    80 F.2d 353
    , 357 (6th Cir.1986), cert. denied, 
    479 U.S. 1097
    , 
    107 S.Ct. 1318
    , 
    94 L.Ed.2d 171
    10
    (1987).   Indeed, when an officer is entitled to make an investigatory stop, the officer also
    may take reasonable steps to provide for his own safety.       State v. Carter, 2d Dist. No.
    21999, 
    2008-Ohio-2588
    , ¶ 24.       The forcible restraint of a suspect does not necessarily
    convert a Terry detention into a formal arrest. 
    Id.
     This is particularly true where the
    purpose of the restraint is for the officer’s safety. See, e.g., State v. Dunson, 2d Dist. No.
    20961, 
    2006-Ohio-775
    , ¶ 17.       Because Officer Moore reasonably believed that Bailey
    had a weapon based on the information provided by the CRI as well as Bailey’s failure to
    immediately comply with the officer’s orders, we find that the trial court properly denied
    Bailey’s motion to suppress.
    {¶21} The eighth assignment of error is overruled.
    Motion to Consolidate
    {¶22} Bailey argues in his fifth assignment of error that the trial court abused its
    discretion in granting the state’s motion to consolidate this case with another pending
    indictment. Bailey raises several arguments as to why the two cases should not have
    been consolidated, including that the state’s motion was untimely, that the joinder failed to
    meet the requirements of Crim.R. 8, and that the joinder was prejudicial.     But the record
    reveals that the two indictments were not tried together — the trial court granted the state’s
    motion to dismiss the counts associated with the second indictment before the jury was
    sworn. We therefore find his arguments relating to the consolidation of the cases and the
    denial of his motion to sever to be irrelevant.
    11
    {¶23} As for Bailey’s claim that he was still prejudiced because the jury heard
    during voir dire the counts of the second indictment (namely, three additional counts
    revealing charges for a different day than those charges giving rise to the other counts), we
    find this argument unpersuasive. Here, the jury was specifically instructed prior to being
    empaneled that they should only consider the first three counts of the indictment, which
    the trial court read to them after being sworn.      The trial court further instructed the jury
    during voir dire that they “should not give any weight to the fact that an indictment has
    been issued.”    The trial court later instructed the jury at the conclusion of the trial that the
    indictment may not be considered as evidence.         We have no reason to believe that the
    jury did not follow the trial court’s instructions. See State v. Dunkins, 
    10 Ohio App.3d 72
    , 73, 
    460 N.E.2d 688
     (9th Dist.1983) (It is presumed that the jury will obey the trial
    court’s instructions). Accordingly, the fifth assignment of error is overruled.
    Identity of the CRI
    {¶24} In his third assignment of error, Bailey argues that he was denied due process
    by the trial court’s refusal to order the state to disclose the identity of the CRI. We
    disagree.
    {¶25} The standard of review for a case involving a CRI is whether the judge
    abused her discretion in ordering or refusing to order disclosure of the identity of that
    person.     State v. Brown, 
    64 Ohio St.3d 649
    , 
    597 N.E.2d 510
     (1992). We therefore will
    12
    not reverse the trial court’s decision unless it was unreasonable, arbitrary, or
    unconscionable. 
    Id.
    {¶26} A defendant is entitled to disclosure of a confidential informant’s identity
    only where the informant’s testimony is either (1) vital to establishing an essential element
    of the offense charged; or (2) helpful or beneficial to the accused in preparing a defense.
    State v. Williams, 
    4 Ohio St.3d 74
    , 
    446 N.E.2d 779
    , syllabus (1983). “If the informant’s
    degree of participation is such that the informant is essentially a state’s witness, the
    balance tilts in favor of disclosure.” State v. Wilson, 
    156 Ohio App.3d 1
    , 
    2004-Ohio-144
    ,
    
    804 N.E.2d 61
    , ¶ 35 (8th Dist.). When disclosure is not helpful to the defense, however,
    the state need not reveal the identity. 
    Id.
    {¶27} Despite Bailey’s broad claims that the CRI’s involvement “point directly to
    the elements of the offenses,” and that the disclosure would have been helpful to his
    defense, Bailey failed to satisfy his burden establishing the need for learning the
    informant’s identity. While the testimony of the informant was helpful in establishing the
    probable cause to stop the vehicle, his testimony was not vital to establishing any of the
    elements of Bailey’s offenses. See Wilson at ¶ 35.      Moreover, Bailey’s claims that the
    CRI’s identity would have been helpful to his defense amount to nothing more than
    speculation. Accordingly, we cannot say that the trial court abused its discretion; the third
    assignment of error is overruled.
    Motion in Limine
    13
    {¶28} In his fourth assignment of error, Bailey argues that the trial court erred in
    failing to grant his motion in limine regarding the information that the CRI relayed to Det.
    Crayton. He claims that the testimony was hearsay and its admission violated his right to
    confront witnesses as recognized in Crawford v. Washington, 
    541 U.S. 36
    , 
    124 S.Ct. 1354
    ,
    
    158 L.Ed.2d 177
     (2004). We disagree.
    {¶29} We note that Det. Crayon never testified as to what the CRI told him. He
    merely testified that as a result of his conversation with the CRI, he radioed the officers
    and provided them with the description of the vehicle to effectuate a stop.         But we
    acknowledge that both Officer Moore and Sgt. Kutz testified as to the information that
    they learned from the radio broadcast, which directly implicated what the CRI had
    reported: a male in the parking lot with crack cocaine and a weapon.        The trial court
    allowed this testimony because it found that the testimony was not hearsay. We find that
    the trial court did not err in doing so.
    {¶30} Pursuant to Evid.R. 801(C), “‘[h]earsay’ is a statement, other than one made
    by the declarant while testifying at the trial or hearing, offered in evidence to prove the
    truth of the matter asserted.”    Statements that are not hearsay are not implicated by the
    confrontation clause because they are not testimonial in nature. State v. Waddell, 3d Dist.
    Nos. 9-04-30, 9-04-31, and 9-04-32, 
    2005-Ohio-1426
    , at ¶ 7, citing Crawford v.
    Washington, 
    541 U.S. 36
    . Indeed, “[t]he [Confrontation] Clause * * * does not bar the
    14
    use of testimonial statements for purposes other than establishing the truth of the matter
    asserted.” Crawford at fn. 9.
    {¶31} We find that the testimony implicating what the CRI reported was not
    hearsay. The evidence was introduced to provide context to the events leading up to
    Bailey’s arrest, specifically explaining the police’s actions in searching for a gold Chevy
    Tahoe on Rosa Parks Boulevard. It was not offered for the truth of the statement, and
    therefore Bailey’s rights under the Confrontation Clause were not implicated.
    {¶32} The fourth assignment of error is overruled.
    Due Process
    {¶33} In his sixth assignment of error, Bailey argues that he was denied due process
    because the trial court denied him the right to question Sgt. Kutz as to Kelly’s criminal
    record pursuant to Evid.R. 806(A). The rule provides as follows:
    When a hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c),
    (d), or (e), has been admitted in evidence, the credibility of the declarant
    may be attacked, and if attacked may be supported, by any evidence that
    would be admissible for those purposes if declarant had testified as a
    witness.
    Evid.R. 806(A).
    {¶34} Bailey maintains that once Sgt. Kutz testified as to what Kelly told him
    regarding the fact that Bailey threw the drugs, the trial court was required to allow Bailey
    to question Sgt. Kutz as to Kelly’s criminal record. He contends that he was denied the
    15
    opportunity to demonstrate to the jury that Kelly’s statement “was not trustworthy,
    reliable, and credible at the time that the officer testified.”
    {¶35} While we agree that Bailey should have been allowed to question Sgt. Kutz
    as to his knowledge of Kelly’s criminal record under Evid.R. 806(A), we find the trial
    court’s ruling to be harmless error under the facts of this case.   “An error in the admission
    or exclusion of evidence is properly considered harmless error if it does not affect a
    substantial right of the accused.”            State v. Condon, 
    152 Ohio App.3d 629
    ,
    
    2003-Ohio-2335
    , 
    789 N.E.2d 696
    , ¶ 80 (1st Dist.), citing Crim.R. 52(A). Here, Kelly
    testified at trial, and Bailey thoroughly inquired as to Kelly’s criminal record, attacking his
    credibility.   In fact, the record reveals that defense counsel even got Kelly to admit that
    after having already been to prison, he now “would do anything to avoid prison.” We
    simply find no prejudice in this case.
    {¶36} The sixth assignment of error is overruled.
    Sufficiency and Manifiest Weight of the Evidence
    {¶37} In his ninth assignment of error, Bailey argues that the state failed to produce
    sufficient evidence to convict him of drug trafficking and drug possession. He further
    argues in his final assignment of error that his convictions are against the manifest weight
    of the evidence because the state’s evidence was not credible.         The gravamen of both
    arguments is that the state failed to prove that Bailey even possessed the drugs found in the
    vehicle, let alone that he trafficked them.
    16
    {¶38} When an appellate court reviews a record upon a sufficiency challenge, “‘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. Leonard, 
    104 Ohio St.3d 54
    ,
    
    2004-Ohio-6235
    , 
    818 N.E.2d 229
    , ¶ 77, quoting State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991), paragraph two of the syllabus.
    {¶39} Conversely, the manifest weight of the evidence standard is as follows:
    In reviewing a claim challenging the manifest weight of the evidence, [t]he
    question to be answered is whether there is substantial evidence upon which
    a jury could reasonably conclude that all the elements have been proved
    beyond a reasonable doubt. In conducting this review, we must examine
    the entire record, weigh the evidence and all reasonable inferences, consider
    the credibility of the witnesses, and determine whether the jury clearly lost
    its way and created such a manifest miscarriage of justice that the conviction
    must be reversed and a new trial ordered.
    (Internal quotes and citations omitted.)   Leonard at ¶ 81.
    {¶40} Pursuant to drug trafficking under R.C. 2925.03(A)(2), “[n]o person shall
    knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for distribution, or
    distribute a controlled substance, when the offender knows or has reasonable cause to
    believe that the controlled substance is intended for sale or resale by the offender or
    another person.”
    {¶41} R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess,
    or use a controlled substance.”
    17
    {¶42} The state presented evidence that Bailey was driving a vehicle that had been
    reported as having crack cocaine inside.      The police encountered the vehicle stopped in
    the middle of the road; but as soon as the police activated their sirens, the vehicle slowly
    moved forward 50 to 60 feet.     Officer Moore and Sgt. Kutz further testified that Bailey
    did not immediately comply with their request to place his hands out the window.
    {¶43} The police discovered 3.07 grams of crack cocaine between the right foot of
    the front-seat passenger and the side door.      The front-seat passenger, Kelly, testified that
    he never saw the drugs until he heard the police sirens.     He did not see the drugs when he
    first entered the vehicle or when he exited and reentered at the convenience store.       Kelly
    further testified that he got into the car with Bailey hoping to get some drugs from Bailey.
    {¶44} The state’s theory at trial was that Bailey threw the crack cocaine upon
    hearing the sirens, distancing the drugs from himself and implicating Kelly. Kelly’s
    testimony, if believed, established that Bailey had constructive possession of the drugs.
    Likewise, we find that the state presented sufficient evidence to prove that Bailey was
    transporting drugs with the intent to sell. Kelly testified that he was a “longtime friend”
    of Bailey’s and that he flagged Bailey down and got into the car, with the hope of getting
    crack cocaine.   Det. Crayton testified that the amount of crack cocaine recovered was
    large enough to “at least cut * * * 20 times.”
    {¶45} We do not agree with Bailey that this case is analogous to the facts in State v.
    Smith, 8th Dist. No. 96348, 
    2011-Ohio-6466
    , where this court vacated the defendant’s
    18
    drug trafficking conviction on sufficiency grounds.               In Smith, the defendant was
    convicted for drug trafficking based simply on having three rocks of crack cocaine
    (weighing less than one gram) in his possession when the police arrested him for
    outstanding warrants. Conversely, in this case, the events directly leading up to Bailey’s
    arrest specifically tied him to drug trafficking.     As discussed above, the evidence revealed
    that Kelly — Bailey’s longtime friend — flagged him down with the intent of getting
    crack cocaine from Bailey. Further, Bailey possessed enough crack cocaine for “20 uses”
    —    more than the amount at issue in Smith.
    {¶46} Construing the evidence in a light most favorable to the state, thereby taking
    Kelly’s testimony as being true, the evidence was enough to establish that Bailey had
    constructive possession of the drugs and that he was transporting the drugs in his vehicle
    with the intent to sell.1
    {¶47} Furthermore, we cannot say that this is the exceptional case where the jury
    clearly “lost its way.”     The determination of weight and credibility of the evidence is for
    the trier of fact. State v. DeHass, 
    10 Ohio St.2d 230
    , 
    227 N.E.2d 212
     (1967). Although
    an appellate court must act as a “thirteenth juror” when considering whether the manifest
    weight of the evidence requires reversal, it must give great deference to the fact finder’s
    We also note that, for purposes of drug trafficking in violation of R.C. 2925.03, the “sale”
    1
    of a drug includes providing drugs as a “gift.” See State v. Grier, 5th Dist. No. 2010 CA 00246,
    
    2011-Ohio-3815
    , ¶ 22.
    19
    determination of the witnesses’ credibility.    State v. Chandler, 10th Dist. No. 05AP-415,
    
    2006-Ohio-2070
    , ¶ 9.     Here, the jury was free to believe Kelly’s testimony despite him
    having a criminal record.
    {¶48} The ninth and tenth assignments of error are overruled.
    Prosecutorial Misconduct and Motion for a Mistrial
    {¶49} In his first and second assignments of error, Bailey argues that the
    prosecutor’s comments in closing arguments denied him a fair trial; he additionally argues
    in his seventh assignment of error that the trial judge should have granted his motion for a
    mistrial based on the prosecutor’s comments.
    {¶50} The standard of review for prosecutorial misconduct is whether the
    comments and questions by the prosecution were improper, and, if so, whether they
    prejudiced appellant’s substantial rights.     State v. Treesh, 
    90 Ohio St.3d 460
    , 480, 
    739 N.E.2d 749
     (2001). Prosecutorial misconduct will not provide a basis for reversal unless
    the misconduct can be said to have deprived the appellant of a fair trial based on the entire
    record.   State v. Lott, 
    51 Ohio St.3d 160
    , 166, 
    555 N.E.2d 293
     (1990). “The touchstone
    of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”   State v.
    Gapen, 
    104 Ohio St.3d 358
    , 
    2004-Ohio-6548
    , 
    819 N.E.2d 1047
    , ¶ 92, quoting Smith v.
    Phillips, 
    455 U.S. 209
    , 219, 
    102 S.Ct. 940
    , 
    71 L.Ed.2d 78
     (1982).
    {¶51} Therefore, our duty is to consider the trial record and to determine whether
    Bailey’s substantial rights were violated, thereby depriving him of a fair trial. We note,
    20
    however, that a defendant’s substantial rights cannot be prejudiced when the remaining
    evidence, standing alone, is so overwhelming that it constitutes defendant’s guilt, and the
    outcome of the case would have been the same regardless of evidence admitted
    erroneously. State v. Williams, 
    38 Ohio St.3d 346
    , 349-350, 
    528 N.E.2d 910
     (1988).
    {¶52} Bailey argues that the prosecutor’s statements during the state’s closing
    argument deprived him of a fair trial because the prosecutor twice told the jury that the
    gold Chevy Tahoe belonged to him — a fact that was neither proven nor true.                 He
    complains first of the following comment made during the prosecutor’s initial closing
    statement: “So how do we know from the events that you heard, the evidence that you
    heard, that he knew that this crack was in his car?    Well, it’s his car.   That a pretty good
    starting point.” Next, Bailey argues that the prejudice was compounded by the following
    statement made when the prosecutor addressed the jury during the second closing
    argument: “But what was shown was exactly what I told you in my first closing. Mr.
    Bailey’s car, Mr. Bailey as driver, Mr. Bailey with 20 uses of crack cocaine.”
    {¶53} The state counters that the prosecutor was merely summarizing “the fact that
    [Bailey] was driving the car and the car was under [Bailey’s] control.”       The state further
    argues that “even if the statement that the car belonged to [Bailey] is factually inaccurate,
    the statement did not impact [Bailey’s] substantial rights” because the jury was specifically
    instructed that closing arguments were not evidence.
    21
    {¶54} Although prosecutors are entitled to considerable latitude in opening and
    closing arguments, they must nevertheless avoid insinuations and assertions calculated to
    mislead. State v. Lott, 
    51 Ohio St.3d 160
    , 166, 
    555 N.E.2d 293
     (1990). “They may not
    express their personal beliefs or opinions regarding the guilt of the accused, and they may
    not allude to matters not supported by admissible evidence.” 
    Id.
     The prosecutor is,
    however, permitted to fairly comment on the credibility of witnesses based on the
    witnesses’ testimony at trial. State v. Williams, 8th Dist. No. 90739, 
    2012-Ohio-1741
    , ¶
    12, citing State v. Price, 
    60 Ohio St.2d 136
    , 140, 
    398 N.E.2d 772
     (1979). A prosecutor’s
    comments should not be taken out of context and given their most damaging meaning.
    State v. Hill, 
    75 Ohio St.3d 195
    , 204, 
    661 N.E.2d 1068
     (1996). Courts must review the
    statement within the context of the entire trial. 
    Id.
    {¶55} While we find that the prosecutor’s statements that the vehicle was Bailey’s
    were factually inaccurate, we cannot say that it deprived Bailey of a fair trial or that Bailey
    was prejudiced by such comments. Here, the state’s success was dependent on the jury
    believing that Bailey threw the drugs once the police activated their lights and sirens.
    The fact of who owned the vehicle was not a critical issue.       Indeed, this was not a case
    where the police located the drugs in an obscure part of the car and each occupant was
    denying ownership.     Nor was it a case where the drugs were found closer to the driver
    than the passenger. In this case, the drugs were found next to Kelly’s foot who expressly
    testified that they were not there when he first entered the vehicle or when he later exited
    22
    and reentered the vehicle at the corner store parking lot.            We fail to see how the
    prosecutor’s misstatement of actual ownership of the vehicle, as opposed to Bailey simply
    driving the vehicle, would have prejudiced Bailey based on the facts of this case.
    {¶56} Furthermore, Bailey never objected to these references when made by the
    prosecutor in closing argument. Nor did he ask for any curative instruction. And while
    Bailey moved for a new trial based on these statements, we cannot say that the trial court
    abused its discretion in denying the motion when Bailey failed to demonstrate any
    prejudice by the statements. See State v. Schiebel, 
    55 Ohio St.3d 71
    , 76, 
    564 N.E.2d 54
    (1990) (abuse of discretion standard applies for a motion for a mistrial based on
    prosecutorial misconduct); See also Crim.R. 33(A)(2) (mistrial should be granted only if
    the prosecutorial misconduct “affect[ed] materially [defendant’s] substantial rights”).
    {¶57} Bailey also argues that the prosecutor improperly vouched for the credibility
    of Kelly by telling the jury that “[Kelly] came here and was honest about his role in this
    situation.” Bailey did timely object to this statement and the trial court overruled it.
    {¶58} We do not find that the prosecutor’s single, isolated comment that “[Kelly]
    was honest about his role in this situation” rises to the level of prosecutorial misconduct.
    Nor can we say that it amounts to the prosecutor improperly vouching for the witness’s
    credibility when viewing the statement in its entire context.2 Instead, we find that the
    The prosecutor’s full statement is as follows: “Craig Kelly came here, he didn’t want to
    2
    come here, he didn’t want to testify for the state. He didn’t want to testify against his friend. He
    came here and was honest about his role in this situation.” Then the defense counsel objected, which
    23
    prosecutor’s statement amounted to merely pointing out that Kelly admitted to his role in
    this case, despite how embarrassing or incriminating it may be for him.            The prosecutor’s
    statement taken in context served to rebut the defense’s claim that Kelly had no credibility
    and to emphasize that Kelly’s plea agreement was based on him testifying honestly.
    Indeed, Kelly testified that his plea agreement was contingent upon him testifying
    honestly.    The prosecutor argued that the jury should believe Kelly given that he admitted
    to his crack addiction and his role in trying to obtain free crack from Bailey. These
    statements, therefore, merely pointed out reasons why the jury should believe Kelly and
    summarized actual testimony that was presented. See Williams, 
    2012-Ohio-1741
    , at ¶ 19
    (recognizing that a “prosecutor is free to comment on facts adduced at trial to lend to or
    detract from a witness’s credibility as long as she does not give her opinion”). We simply
    do not find that the prosecutor’s comment invaded the province of the jury or amounted to
    the prosecutor giving her personal opinion as to the character of the witness.              Here, the
    jury had plenty of evidence before it to assess Kelly’s credibility, and this single statement
    did not constitute prosecutorial misconduct.
    {¶59} Accordingly, the first, second, and seventh assignments of error are
    overruled.
    the trial court overruled. The prosecutor continued as follows: “He came here and he told that parts
    [sic] of his plea agreement with the State of Ohio was to testify truthfully and he told you — imagine
    admitting to a room of 14 strangers sitting in a box, admitting to them that he uses drugs of that [sic]
    he uses crack cocaine. And that he had no money on October 14, 2010 and was flagging down his
    friend in the hopes that he could once again get crack cocaine.”
    24
    {¶60} 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 conviction 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.
    MARY J. BOYLE, JUDGE
    PATRICIA ANN BLACKMON, A.J., and
    FRANK D. CELEBREZZE, JR., J., CONCUR