State v. Freeman , 138 Ohio App. 3d 408 ( 2000 )

I concur in the majority's disposition of Freeman's first, second, third and fifth assignments of error. However, I dissent from the majority's decision sustaining Freeman's fourth assignment of error, because I do not believe that the prosecutor's statements during closing argument, even if improper, deprived Freeman of a fair trial.

Before this court may reverse a conviction based on prosecutorial misconduct, we must determine that the remarks of the prosecutor were improper and that they "prejudicially affected the substantial rights of the accused."²⁴ The issue is the fairness of the trial, not the culpability of the prosecutor.²⁵ I would conclude that the comments made by the prosecutor during closing argument, whether considered alone or cumulatively, did not so prejudice Freeman as to deprive him of a fair trial. The trial court admonished the jury that closing arguments were not evidence, and Freeman has raised no other evidence of misconduct during the course of the trial.

For the foregoing reasons, I respectfully dissent from the majority's disposition of Freeman's fourth assignment of error. I concur in the disposition of the other assignments of error.

²⁴ State v. Smith (2000), 87 Ohio St.3d 424, 442, 721 N.E.2d 93,112.

²⁵ See id.