State v. Singleton ( 2013 )

[Cite as State v. Singleton, 2013-Ohio-1440.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98301
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PHILLIP SINGLETON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-560201
BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: April 11, 2013
ATTORNEY FOR APPELLANT
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103-1124
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Phillip Singleton, appeals his convictions for robbery,
felonious assault, theft, and petty theft. Finding no merit to the appeal, we affirm.
{¶2} In March 2012, Singleton was indicted with aggravated robbery, two counts
of robbery, felonious assault, theft, petty theft, and having a weapon while under
disability. The aggravated robbery, robbery, and felonious assault charges included one-
and three-year firearm specifications, a notice of prior conviction, and a repeat violent
offender specification. Prior to the commencement of a jury trial, Singleton stipulated to
the prior conviction and elected to bifurcate the trial, waiving his right to a jury trial on
the charge of having a weapon while under disability and the repeat violent offender
specifications. The remaining charges were tried to the jury, where the following
evidence was presented.
{¶3} In the evening of December 4, 2011, Singleton and the victim, Rayshawn
Jordan, went to Singleton’s girlfriend’s house located at 545 East 115th Street in
Cleveland. Jordan testified that prior to this evening he did not know Singleton and that
he had never been to this residence. Before arriving at that residence, Jordan and
Singleton went to a store where Jordan bought some beer. Testimony at trial indicated
they went to another house to drink the beer prior to going to the East 115th Street
address.
{¶4} When they arrived at the East 115th house, Singleton told Jordan to wait on
the porch while he went inside to check if it was okay for Jordan to come inside. Jordan
testified that he waited on the porch, but Singleton never came back out. He knocked on
the door, but then turned around and “saw something like silver that he had hit me with
and knocked me out.” Jordan testified that he was struck in the eye with the handle of
the silver object, which he believed was a gun. According to Jordan, he was on the
porch when he was struck and knocked out, but when he regained consciousness, he was
lying on the lawn. Jordan initially testified that the had no recollection how he got from
the porch to the lawn, but later testified that he heard two voices — someone was
dragging him while the other was rummaging through his pockets.
{¶5} Jordan testified that he was awakened by the man from across the street
who later called the paramedics. While speaking with paramedics, Jordan believed he
had been robbed because his personal belongings in his pockets were missing, including
his phone and charger, earplugs, money, and wallet, which contained his identification,
credit card, bank cards, birth certificate, and social security card. Jordan testified he had
an injury under his eye — “just a little gash like right above my cheekbone.”
{¶6} The paramedics called the police. When the police arrived, Jordan told the
officers that he had been robbed. According to Jordan, the officers went inside the
house and brought two men outside, including Singleton. Although Jordan testified that
he told the officers that Singleton had robbed him, this statement was not included in his
written statement. Jordan recovered all of his property that evening except his money.
{¶7} Charles Smith, who also lived on East 115th, testified that on December 4, he
saw Singleton and another male across the street on the porch of 545 East 115th Street.
According to Smith, eight people lived at this address. About twenty minutes later, he
saw a male, later identified as Jordan, lying on the ground in front of the house; another
male was hunched over him. The unidentified male then stood up and ran around an
abandoned house. Smith stated he was approximately 100 to 120 feet away when he
witnessed this, and could not identify who the other male was. According to Smith,
Jordan got up, stumbled from the yard toward the house, and then sat on the porch.
Smith testified that he called to Jordan, but got no response. Jordan then walked over to
him, stating that he did not know his name, where he lived, or how he got to where he
was. According to Smith, Jordan “appeared to be in a daze after being knocked out,” so
he called for an ambulance. Smith testified that Jordan told him that he may have been
robbed.
{¶8} Officer Raul Atanacio testified that he responded to a call for a male robbed
at gunpoint on East 115th. When he arrived at the scene, he saw Jordan being treated by
paramedics. According to Officer Atanacio, Jordan initially seemed groggy and
disoriented. Atanacio interviewed Jordan at the scene and Jordan gave him a description
of the person who robbed him.
{¶9} Officer Atanacio testified that he was working with Officer Dooley that
evening. Also assisting in the investigation were Officers Cruz and Maxel. Officer
Atanacio testified that Officers Cruz and Dooley found Singleton hiding in a closet inside
the residence. Officer Atanacio testified that Officer Cruz told him that Jordan’s
missing cell phone and charger were found in the hallway next to the closet where
Singleton was discovered. Singleton was then handcuffed and escorted outside.
According to Officer Atanacio, when Singleton was brought out of the house, Jordan
asked Singleton why he did “that to him.”
{¶10} Officer Atanacio then patted Singleton down and recovered Jordan’s wallet,
identification, and social security card from his pockets. When Officer Atanacio asked
Singleton why he had Jordan’s “stuff” on his person, Singleton replied, “[h]e owed me
money, that’s why I took his shit.”
{¶11} On cross-examination, Officer Atanacio admitted that his report did not
contain important details such as Jordan’s direct question to Singleton about why he did
this to him, and the names of potential witnesses from the East 115th residence.
Additionally, he admitted he did not conduct a cold stand with Smith to see if the man
standing over Jordan in the yard was Singleton. Finally, no fingerprints were lifted from
any of Jordan’s property prior to it being returned to him.
{¶12} Officer Atanacio also testified about a second story that Jordan told him on
the evening of the offense. According to Officer Atanacio, Jordan told him that a male
wearing a gray hoodie and blue jeans pointed a weapon at him while he and Singleton
were walking to the East 115th residence. Jordan denied telling the officer this story.
{¶13} Detective Albert Oliver testified that he took Jordan’s written statement.
In the statement, Jordan stated that “someone robbed him,” but did not indicate that
“Singleton robbed him.” Detective Oliver testified that because the report did not
indicate any witnesses, he did not go to 545 East 115th Street residence. He admitted
that (1) no fingerprinting was done because items found on a suspect are usually not
fingerprinted, (2) there was not a second suspect in the case, and (3) Jordan never told
him that Singleton robbed him.
{¶14} At the close of evidence, the trial court denied Singleton’s Crim.R. 29
motion for judgment of acquittal. The State then requested that the trial court give an
instruction to the jury on complicity. In overruling Singleton’s objection to the
requested instruction, the trial court found the instruction would be proper because only
some of Jordan’s property was found on Singleton’s person and Jordan testified that he
thought there were two people involved.
{¶15} The jury found Singleton not guilty of aggravated robbery, and all firearm
specifications. However, Singleton was found guilty of felonious assault, robbery, theft,
and petty theft. The trial judge found Singleton not guilty of having a weapon while
under disability, but guilty of the repeat violent offender and notice of prior conviction
specifications. Singleton was sentenced to a total of three years in prison.
{¶16} He now appeals, raising nine assignments of error, which will be discussed
together and out of order where appropriate.
I. Jury Instructions
{¶17} In his first, second, third, and fourth assignments of error, Singleton
contends the trial court erred in its rendering of jury instructions. Specifically, he
contends that the trial court (1) committed plain error, in violation of Crim.R. 30, and
denied him due process, by submitting “grossly incomplete” written instructions to the
jury; (2) committed plain error by failing to include in its charge to the jury a general
instruction on credibility and a specific instruction on the use of prior convictions in
determining credibility; (3) committed plain error by giving a jury instruction on the issue
of credibility, which invaded the province of the jury; and (4) committed prejudicial error
by giving an instruction on complicity where the indictment did not allege complicity and
where the victim identified him as the principal in the commission of the alleged crimes.
{¶18} Where Singleton failed to object to the manner in which the court gave the
jury instructions, plain error must be found to reverse his convictions and for a new trial
to be ordered. Crim.R. 30(A). In order to prevail under a plain error analysis, the
appellant bears the burden of demonstrating that the outcome of the trial clearly would
have been different but for the error. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d
804 (1978). Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at
paragraph three of the syllabus; Crim.R. 52(B).
A. Crim.R. 30
{¶19} In his first assignment of error, Singleton contends that the trial court
violated Crim.R. 30 and denied him due process by submitting “grossly incomplete”
written instructions to the jury.
{¶20} Crim.R. 30 provides in pertinent part,
(A) Instructions; Error; Record.
At the close of the evidence or at such earlier time during the trial as the
court reasonably directs, any party may file written requests that the court
instruct the jury on the law as set forth in the requests. Copies shall be
furnished to all other parties at the time of making the requests. The court
shall inform counsel of its proposed action on the requests prior to
counsel’s arguments to the jury and shall give the jury complete instructions
after the arguments are completed. The court also may give some or all of
its instructions to the jury prior to counsel’s arguments. The court shall
reduce its final instructions to writing or make an audio, electronic, or other
recording of those instructions, provide at least one written copy or
recording of those instructions to the jury for use during deliberations, and
preserve those instructions for the record.
On appeal, a party may not assign as error the giving or the failure to give
any instructions unless the party objects before the jury retires to consider
its verdict, stating specifically the matter objected to and the grounds of the
objection. Opportunity shall be given to make the objection out of the
hearing of the jury.
(B) Cautionary instructions.
At the commencement and during the course of the trial, the court may give
the jury cautionary and other instructions of law relating to trial procedure,
credibility and weight of the evidence, and the duty and function of the jury
and may acquaint the jury generally with the nature of the case.
{¶21} The Ohio Supreme Court has held that the trial court is required to repeat all
preliminary instructions at the end of trial. State v. Comen, 50 Ohio St.3d 206, 209-210,
553 N.E.2d 640 (1990).
If the preliminary or cautionary instructions include matters of law vital to
the right of a defendant, the trial court is not excused from including or
repeating all such instructions after the arguments are completed.
Repeating instructions means fully instructing the jury on the law applicable
to the case and not providing them simply with a cursory reminder of what
was earlier provided in either the preliminary or cautionary instructions.
Regardless of the length of trial, the court cannot assume the jury recalls or
remembers the prior instructions.
Accordingly, we hold that before the taking of evidence, a trial court may
give preliminary instructions to the jury appropriate for the jury’s guidance
in hearing the case. A court may also give cautionary instructions
throughout the trial. After arguments are completed, a trial court must
fully and completely give the jury all instructions which are relevant and
necessary for the jury to weigh the evidence and discharge its duty as the
fact finder.
Id. at 210.
{¶22} Even so holding, the Supreme Court maintained that it is incumbent on the
appellant to demonstrate the prejudicial effect of the trial court’s failure to repeat all
instructions given throughout the course of trial. Id. The court found that “the proper
procedure is for a trial court to explicitly follow Crim.R. 30 when instructing a jury,” but
it could not ignore the lack of prejudice demonstrated by the appellant. Id. The Comen
court determined that because the appellant failed to demonstrate prejudice, it could find
no reversible error. See also State v. Millay, 5th Dist. No. 11 CA 10 0090,
2012-Ohio-3776 (relying on Comen in finding no plain error in the trial court’s failure to
comply with Crim.R. 30; appellant did not demonstrate prejudice).
{¶23} We find the demonstration of prejudice equally lacking in this case. After
the jury was empaneled and sworn in, but prior to opening statements, the trial court gave
both preliminary and cautionary instructions. However, at the close of trial, the trial
court did not repeat these instructions; rather, the court only read and submitted written
instructions to the jury on the elements and attendant definitions of each offense and
included an instruction on complicity.
{¶24} Applying and reiterating the rationale stated in Comen, the best practice and
the proper procedure would have been for the trial court to explicitly follow Crim.R. 30.
Although the trial court failed to fully comply with Crim.R. 30, Singleton has not
demonstrated prejudice, such that if the court repeated all the preliminary instructions at
the end of the trial, the result of the proceeding would have been different. Instead, he
makes a conclusory statement that the instructions submitted to the jury at the close of the
case placed an undue emphasis on the instructions needed to convict, and diminished the
importance of instructions needed to protect his constitutional rights. This statement
does not withstand Singleton’s burden of proving prejudice. Moreover, the jury’s
verdict evidences that it considered all the instructions given throughout the trial because
they acquitted Singleton on the aggravated robbery charge and all firearm specifications
— clearly not focusing only on convictions, but also on Singleton’s constitutional right to
hold the State to its burden of proof.
{¶25} Accordingly, the first assignment of error is overruled.
B. Credibility
{¶26} In his second and third assignments of error, Singleton challenges the trial
court’s instruction on credibility, contending that critical portions of the general
instruction on credibility are absent, including (1) the “tests” for determining credibility,
(2) eyewitness testimony, and (3) the use of prior convictions in determining credibility;
he also contends that the instruction given on credibility invaded the province of the jury.
{¶27} As we previously discussed, the trial court did not give the jury written
instructions of any of the preliminary or cautionary instructions that it orally gave to the
jury prior to oral arguments or throughout the trial. Accordingly, our focus is on the oral
instructions given by the court.
{¶28} Contrary to Singleton’s assertion, a review of the record indicates that in its
preliminary instructions, the court orally gave the jury a complete instruction on the
“tests” for determining credibility. Section 409.05 of the Ohio Jury Instructions (“OJI”)
sets forth specific instructions regarding credibility, including that the jurors are the
judges of fact, credibility, and weight of the evidence; jurors are to weigh the evidence by
applying the tests of truthfulness; and they can believe or disbelieve all or part of any
given witness’s testimony. The trial court gave these specific instructions in its
preliminary instructions. (Tr. 132-134.) Accordingly, the trial court gave a complete
instruction on credibility and in accordance with OJI 409.05.
{¶29} Singleton next contends that the trial court failed to give an instruction on
eyewitness testimony. Although the trial court did not give this instruction, the
eyewitness in this case (Charles Smith) could not identify who he saw standing over the
victim. Therefore, the “eyewitness” did not offer any testimony implicating or
exonerating Singleton; the instruction would not have guided the jury in its deliberations
on this issue. Therefore we find no error.
{¶30} The third issue raised by Singleton concerns the court’s failure to give an
instruction on the use of prior convictions to determine credibility. Singleton cites to
OJI Section 401.25, which provides:
2. USE OF PRIOR CONVICTION: CREDIBILITY. Evidence was
received that the defendant was convicted of (describe prior conviction).
That evidence was received only for a limited purpose. It was not
received, and you may not consider it, to prove the character of the
defendant in order to show he acted in (conformity) (accordance) with that
character. If you find that the defendant was convicted of (describe
conviction), you may consider that evidence only for the purpose of testing
the defendant’s (credibility) (believability) and the weight to be given the
defendant’s testimony. It cannot be considered for any other purpose.
Singleton argues that this instruction was crucial “because the victim, whose credibility
was vital to the State’s case, had a extensive criminal record.” However, this instruction
is given when the defendant testifies, not the victim. In this case, Singleton did not
testify; thus there was no plain error in the trial court’s failure to give this instruction.
{¶31} Finally, Singleton contends that the court’s jury instruction invaded the
province of the jury when it advised them that “discrepancies in a witness’ testimony or
between his or her testimony and that of others does not necessarily mean that you should
disbelieve a witness as people commonly forget facts or recollect them erroneously after
the passage of time.” In support of his argument, he cites to State v. Cunningham, 105
Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504. The instruction challenged by
Singleton is identical to the instruction the Ohio Supreme Court reviewed in
Cunningham. Id. at ¶ 54. After reviewing the entire instruction, the Court concluded
that the trial court did not commit any error, plain or otherwise, in giving this instruction.
Id. at ¶ 57. “When the credibility instruction is viewed in its entirety, it is clear that the
trial court did not instruct the jury to disregard discrepancies in the evidence. Rather, the
court charged the jury to consider discrepancies and weigh their significance when
determining credibility.” Id.
{¶32} Just as in Cunningham, the trial court gave an appropriate instruction on
credibility. A complete and plain reading of the entire charge regarding credibility
clearly shows that the trial court gave the full and identical instruction the Ohio Supreme
Court found appropriate in Cunningham, including the following instruction: “In
considering a discrepancy in a witness’s testimony, you should consider whether such
discrepancy concerns an important fact or a trivial one.” (Tr. 133.)
{¶33} Accordingly, we do not find that the instruction given by the trial court
invaded the province of the jury when considering the instruction as a whole.
Singleton’s second and third assignments of error are without merit.
C. Complicity
{¶34} In Singleton’s fourth assignment of error, he contends that the trial count
erred by giving an instruction on complicity because the indictment did not allege
complicity and the victim identified Singleton as the principal in the commission of the
alleged crimes. Trial counsel did object to the instruction, thus properly preserving the
issue for appeal under an abuse of discretion standard of review.
{¶35} A trial court has the discretion to determine whether the evidence adduced at
trial was sufficient to require a corresponding jury instruction. State v. Fulmer, 117
Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72. Such a decision will not be
disturbed absent a finding that the trial court abused its discretion. The term “abuse of
discretion” connotes more than an error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983). Thus, an appellate court may not substitute its
judgment for that of the trial court. Id. at 219.
{¶36} R.C. 2923.03(F) provides that an accomplice to the commission of an
offense shall be prosecuted and punished as if he were a principal offender. State v.
Read, 11th Dist. No. 98-L-127, 1999 Ohio App. LEXIS 5932 (Dec. 10, 1999), *6. The
plain language of R.C. 2923.03(F) states that a charge of complicity may be stated in
terms of the complicity statute, R.C. 2923.03, or in terms of the principal offense. Id.Thus, pursuant to R.C. 2923.03(F), although the defendant was indicted and prosecuted as
the principal offender, a jury instruction as to complicity could be given. Id., citing State
v. Tumbleson, 105 Ohio App.3d 693, 696, 664 N.E.2d 1318 (12th Dist.1995).
{¶37} It is important to note that, per R.C. 2923.03(A), a defendant can engage in
complicity while acting as the principal offender. Read at *7. “It is no defense to a
charge under this section that no person with whom the accused was in complicity has
been convicted as a principal offender.” See State v. Graven, 52 Ohio St.2d 112, 115,
369 N.E.2d 1205 (1977), citing R.C. 2923.03(B). The State has a burden of proving
each element of a crime beyond a reasonable doubt. Consequently, in order to convict
an offender of complicity, the State need not establish the principal’s identity. State v.
Perryman, 49 Ohio St.2d 14, 27, 358 N.E.2d 1040 (1976). Pursuant to R.C. 2923.03(C),
the state need only prove that a principal committed the offense. Id.{¶38} In this case, the evidence adduced at trial was sufficient to warrant an
instruction on complicity. The victim testified that he was struck in the face with a gun.
He stated that after he was hit, he heard two voices, and felt someone dragging him
while another was going through his pockets. This testimony was sufficient for the trial
court to exercise its discretion and give a complicity instruction. Accordingly, a review
of the record indicates that the trial court properly instructed the jury that Singleton could
be found guilty of complicity of the offenses under indictment. It was inconsequential
that Singleton was indicted and prosecuted for the principal offenses rather than under the
complicity statute. R.C. 2923.03(F). His fourth assignment of error is therefore
overruled.
II. Hearsay
{¶39} In his fifth assignment of error, Singleton contends that the trial court
committed plain error and violated his right of confrontation by admitting hearsay
testimony.
{¶40} At trial, Officer Raul Atanacio testified that he was advised by Officer Cruz
that Singleton was found hiding inside the closet and that the victim’s cell phone and
charger were found next to that closet. The State’s sole rebuttal argument on appeal is
“there is no indication that improper hearsay evidence was admitted at trial.” We
disagree and find that Officer Atanacio’s testimony regarding what Officer Cruz told him
is clearly inadmissible hearsay because it was an out of court statement used to prove the
truth of the matter asserted — that the victim’s phone and phone charger were discovered
outside the closet where Singleton was found hiding. Evid.R. 801(C); Evid.R. 802;
State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987).
{¶41} However, no objection was made at trial regarding this testimony, thus, we
review this assignment of error under a plain error analysis. As previously stated, notice
of plain error “is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice” and the appellant bears the burden
of demonstrating that the outcome of the trial clearly would have been different but for
the error. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 at paragraph three of the syllabus.
{¶42} In this case, Singleton has not demonstrated that the outcome of the trial
would have been different but for the error in admitting this hearsay testimony. Even
excluding this testimony from the jury’s consideration, the jury also heard evidence that
the victim’s missing wallet, photo identification, and social security card were found
inside Singleton’s pockets when he was arrested. This evidence was sufficient to
support the convictions involving any stolen property; accordingly, the testimony that the
victim’s cell phone and charger were found next to the closet where Singleton was found
was not crucial to the State’s case.
{¶43} The testimony given by Officer Atanacio that Officer Cruz told him that
Singleton was found hiding in a closet at the time of his arrest also does not rise to the
level of plain error such that the outcome of the trial would have been different. Officer
Atanacio testified that he interviewed Singleton after his arrest and Singleton explained to
him why he was in the closet. Whether he was hiding in the closet or merely in the
closet for some other reason is of no consequence when some of the items stolen from the
victim were located in Singleton’s pocket.
{¶44} Accordingly, we do not find that the trial court committed plain error in
allowing the hearsay testimony, and the assigned error is overruled.
III. Manifest Weight of the Evidence
{¶45} In his seventh assignment of error, Singleton contends that his convictions
for felonious assault and robbery1 are against the manifest weight of the evidence
because the (1) victim’s testimony was entirely suspect and contained material
inconsistencies, (2) hearsay contributed to his conviction, (3) the police did not conduct a
thorough investigation, and (4) the eyewitness stated the man standing over the victim
was wearing a gray hooded sweatshirt, when Singleton was not.
{¶46} The State in its brief boldly asserts as its sole rebuttal argument that
“[b]ecause there were no conflicts in the evidence presented at trial, there is nothing here
Singleton does not raise any argument regarding his convictions for theft or petty theft.
1
that needs to be resolved one way or the other.” However, even just a cursory reading of
the trial transcript demonstrates inconsistent and conflicting testimony.
{¶47} A manifest weight challenge questions whether the prosecution met its
burden of persuasion. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982).
A reviewing court may reverse the judgment of conviction if it appears that the trier of
fact “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d
380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶48} Singleton was found guilty of felonious assault, in violation of R.C.
2903.11(A)(2), which provides that “[n]o person shall knowingly * * * cause or attempt
to cause physical harm to another * * * by means of a deadly weapon or dangerous
ordnance.” Singleton was also convicted of two counts of robbery, in violation of R.C.
2911.02(A)(1) and (2), which provides,
[n]o person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following: (1)
[h]ave a deadly weapon on or about the offender’s person or under the
offender’s control; or (2) [i]nflict, attempt to inflict, or threaten to inflict
physical harm on another.
{¶49} It is without doubt that the police investigation in this case was lacking.
The testimony at trial revealed that the officers admittedly failed to include important
details about the crime in their reports, including the names of any potential witnesses and
that Jordan expressly asked Singleton why he did this to him. The officers did not
conduct a cold stand with the neighbor from across the street and did not fingerprint the
cell phone or charger prior to giving the property back to Jordan that evening. In fact,
Officer Atanacio effectively admitted this was pretty much an open and shut case — he
arrived on the scene and met with the victim who had just been robbed, the victim made a
positive identification of suspect, the property was on the suspect’s person, and the
suspect admitted to the crime. No other investigation was done and no other witnesses
were interviewed despite the fact that at least seven other people were in the house that
evening and only some of Jordan’s property was found in Singleton’s pockets.
{¶50} Moreover, the jury heard inconsistent testimony from Jordan and
testimony about his criminal history. However, witness credibility rests primarily with
the trier of fact because the trier of fact is in the best position to view the witnesses and
observe their demeanor, gestures, and voice inflections — observations that are critical to
determining a witness’s credibility. State v. Clark, 8th Dist. No. 94050,
2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 1996-Ohio-222, 661
N.E.2d 1068, and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548 (1964). The trier
of fact is free to accept or reject any or all the testimony of any witness. State v. Smith,
8th Dist. No. 93593, 2010-Ohio-4006, ¶ 16.
{¶51} Regarding Singleton’s argument that hearsay contributed to his convictions,
we have previously concluded that although Officer Atanacio’s testimony was hearsay,
the testimony was of no consequence because some of the stolen property was discovered
in Singleton’s pockets. Finally, and contrary to Singleton’s assertion, Smith did not
testify that the suspect hunched over Jordan was wearing a gray hoodie. Smith testified
that he could not identify the unidentified male and never testified about a physical
description.
{¶52} Despite the lack of investigation in this case, the hearsay, and Jordan’s
inconsistent testimony, the jury could not ignore the undisputed facts that Jordan was
assaulted outside Singleton’s girlfriend’s home and that after the assault, Jordan’s
identification, cell phone, cell phone charger, earplugs, $60 in cash, his credit card, bank
card, birth certificate, and social security card were stolen from him. When the police
responded, they found Jordan’s wallet, photo identification, and social security card
inside Singleton’s pockets. Morever, the jury also heard Jordan testify that Singleton
struck him with the gun, causing a gash under his eye. Finally, Officer Atanacio
testified that when he questioned Singleton why he had Jordan’s property, he stated that
Jordan “owed me money, that’s why I took his shit.”
{¶53} Accordingly, the jury did not lose its way in finding Singleton guilty of
felonious assault and both robbery charges. Singleton’s seventh assignment of error is
overruled.
IV. Prosecutorial Misconduct
{¶54} During closing arguments, defense counsel asserted that the State was trying
to have it both ways — first that Singleton was the principal in committing the act, then
that Singleton was merely an accomplice. Defense counsel told the jury not to “be
fooled” with the “legal mumbo jumbo.” Counsel then stated that “I’m trying to be
honest. I’ve been honest throughout this [trial] * * *.”
{¶55} In response, the prosecutor he took exception with defense counsel calling
him a “liar.”
He says that I lied to you, he says I’m trying to fool you, he says that he’s
been honest, insinuating that I’ve not been.
And I want to assure you that that’s not the case. Of
everybody in the room, only one person here has the
responsibility and has taken an oath to do justice. Who is
that? That’s me, the prosecutor. I don’t have an obligation
to win cases, I don’t have an obligation to get convictions on
people, I have an obligation to do justice, to present evidence
to the best of my ability. Okay?
{¶56} In his eighth assignment of error, Singleton contends that this misconduct of
the prosecuting attorney denied him due process and equal protection under the law.
{¶57} It is well-accepted that the prosecution is normally entitled to a certain
degree of latitude in its concluding remarks. State v. Liberatore, 69 Ohio St.2d 583,
589, 433 N.E.2d 561 (1982). A prosecutor is at liberty to prosecute with earnestness and
vigor. Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314, 55 S.Ct. 629 (1935).
Nevertheless, a prosecutor may not make excessively emotional arguments tending to
inflame the jury’s sensibilities. State v. Tibbetts, 92 Ohio St.3d 146, 168,
2001-Ohio-132, 749 N.E.2d 226. It is also improper, and professionally unethical, for a
prosecutor, or any attorney, to attack, or make any attempt to disparage the character of,
opposing counsel in front of the jury. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d
883 (1984).
{¶58} The test for prosecutorial misconduct is “whether * * * remarks [made by
the prosecutor] were improper and, if so, whether they prejudicially affected the
accused’s substantial rights.” State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787
N.E.2d 1185, ¶ 145. The effect of the alleged misconduct must also be judged in the
context of the entire trial, and not treated as an isolated incident in an otherwise properly
tried case. State v. Poole, 116 Ohio App.3d 513, 524, 688 N.E.2d 591 (7th Dist.1996).
An appellate court should only reverse a conviction if the effect of the misconduct
“permeates the entire atmosphere of the trial.” Tumbleson, 105 Ohio App.3d at 699, 664
N.E.2d 1318. “The touchstone of [the] analysis is the fairness of the trial, not the
culpability of the prosecutor.” Lynch at ¶ 145. In analyzing whether an appellant was
deprived of a fair trial, an appellate court must determine beyond a reasonable doubt
whether, absent the improper questions or remarks, the jury would have found the
appellant guilty. State v. Maurer, 15 Ohio St.3d 239, 266-267, 473 N.E.2d 768 (1984);
State v. Dixon, 8th Dist. No. 68338, 1997 Ohio App. LEXIS 915 (Mar. 13, 1997).
{¶59} Singleton contends the prosecutor disparaged defense counsel by calling
him a liar and that the prosecutor elevated himself by asserting that he was the only
person who had “taken an oath to do justice.”
{¶60} Singleton did not object to the comments at trial; thus, he waived all but
plain error. It is clear from the entire record that the prosecutor made these statements in
response to defense counsel insinuating that the State was trying to fool the jury by
starting the trial with one theory of the case and then, when the evidence did not support
that theory, using a different theory to comport with the evidence and testimony.
Defense counsel raised the issue of honesty, and the prosecutor was entitled to defend
himself against counsel’s insinuation of dishonesty. Having “opened the door,”
Singleton cannot complain about the State’s “reply in kind.” State v. Bankston, 8th Dist.
No. 43772, 1982 Ohio App. LEXIS 11355 (Mar. 11, 1982), *14, citing State v. Swanson,
9 Ohio App.2d 60, 69-70, 222 N.E.2d 844 (1967); see also 4 Ohio Jurisprudence 2d,
Appellate Review, Section 977, (“A judgment will not be reversed because of improper
argument of counsel which is provoked by and in reply to argument of the opposing
counsel on the same subject. In such a case where both parties have offended, a
reviewing court will not undertake to apportion the blame. * * *”).
{¶61} However, we do find that the prosecutor’s comment that he alone took “an
oath to do justice” was improper. Clearly, the judge and jury also take an oath and to
comment otherwise is improper. Nevertheless, this isolated comment did not “permeate
the entire atmosphere of the trial” so as to deny Singleton a fair trial. Viewing the
closing argument as a whole, we cannot conclude that the prosecutor’s remark crossed the
line that “separates permissible fervor from a denial of a fair trial.” State v. Keenan, 66
Ohio St.3d 402, 409, 613 N.E.2d 203 (1993). We also cannot say, in light of the evidence,
that but for the prosecutor’s remark, the jury would have acquitted Singleton.
{¶62} Accordingly, we do not find plain error in this case and Singleton’s eighth
assignment of error is overruled.
V. Ineffective Assistance of Trial Counsel and Cumulative Error
{¶63} In his sixth and ninth assignments of error, Singleton contends that the
errors outlined in his previous assignments of error either alone or collectively, amount to
ineffective assistance of counsel; thus, requiring reversal.
{¶64} The Ohio Supreme Court has recognized the doctrine of cumulative error.
See State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the
syllabus. Under this doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though each of the numerous
instances of trial-court error does not individually constitute cause for reversal. Id. at
196-197. See also State v Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶
132. Moreover, “errors cannot become prejudicial by sheer weight of numbers.” State
v. Hill, 75 Ohio St.3d at 212, 661 N.E.2d 1068.
{¶65} The doctrine of cumulative error is not applicable in this case. Singleton
makes blanket assertions that he was denied a fair trial by the cumulative effect of the
errors made during the trial. However, he gives no analysis or explanation as to why or
how the errors had a prejudicial cumulative effect. None of the errors committed in this
case, when considered either individually or cumulatively, resulted in prejudicial error.
As previously discussed under the other assignments of error, the jury could not ignore
the direct evidence that established Singleton’s guilt.
{¶66} Further, where it is found that the trial court did not err, cumulative error is
simply inapplicable. State v. Carter, 5th Dist. No. 2002CA00125, 2003-Ohio-1313, ¶
37. To the extent that we have found that any claimed error of the trial court was
harmless, or that claimed error did not rise to the level of plain error, we conclude that the
cumulative effect of such claimed errors is also harmless because taken together, they did
not materially affect the verdict. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235,
818 N.E.2d 229, ¶ 185.
{¶67} Finally, to establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of reasonable
representation and that he was prejudiced by that performance. State v. Drummond, 111
Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is
established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland at 694. In evaluating a claim of ineffective assistance of
counsel, a court must be mindful that there are countless ways for an attorney to provide
effective assistance in a given case, and it must give great deference to counsel’s
performance. Id. at 689.
{¶68} Again, Singleton has not demonstrated that he was prejudiced by his trial
counsel’s performance. Furthermore, we note that trial counsel effectively defended the
first degree felony charge — aggravated robbery charge, and all firearm specifications,
which carried mandatory sentences. Accordingly, Singleton’s sixth and ninth
assignments of error are overruled.
{¶69} Judgment affirmed.
It is ordered that appellee recover of appellant its 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS (SEE SEPARATE CONCURRING
OPINION);
TIM McCORMACK, J., CONCURS WITH MAJORITY OPINION AND CONCURS
WITH SEPARATE CONCURRING OPINION
EILEEN A. GALLAGHER, J., CONCURRING:
{¶70} I concur with the majority that the appellant failed to demonstrate a
prejudicial effect by the trial court’s failure to repeat all jury instructions at the conclusion
of a trial.
{¶71} However, I do find that the court violated Crim.R. 30 of the Criminal Rules
of Procedure that requires the trial court to give complete instructions after the arguments
are completed or some or all prior to closing arguments. This violation of the rule was
then compounded by the court providing only partial written instructions to the jury,
which is also violative of Rule 30.