State v. Lauderdale , 2016 Ohio 3357 ( 2016 )

[Cite as State v. Lauderdale, 2016-Ohio-3357.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 26454 and 26456
:
v. : Trial Court Case Nos. 2014-CR-1612
: and 2012-CR-0812
MICHAEL L. LAUDERDALE :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 10th day of June, 2016.
...........
MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 131 North Ludlow Street, Suite 1210,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, Michael L. Lauderdale, appeals from his conviction in
the Montgomery County Court of Common Pleas after a jury found him guilty of
aggravated robbery with an attendant firearm specification in Case No. 2014-CR-1612.
Lauderdale contends his conviction was not supported by sufficient evidence and was
otherwise against the manifest weight of the evidence. Lauderdale also argues that the
State engaged in prosecutorial misconduct during its closing argument.
{¶ 2} In addition to that case, Lauderdale also appeals from the decision of the
Montgomery County Court of Common Pleas revoking his community control sanctions
in Case No. 2012-CR-0812. Lauderdale claims his community control sanctions were
improperly revoked because the revocation was based on the aggravated robbery
conviction in Case No. 2014-CR-1612, which as noted above, Lauderdale claims was not
supported by sufficient evidence and was otherwise against the manifest weight of the
evidence.
{¶ 3} Because Lauderdale’s two appeals are interrelated, they have been
consolidated and reviewed together for purposes of issuing this opinion. For the reasons
outlined below, Lauderdale’s conviction in Case No. 2014-CR-1612 and the revocation of
his community control sanctions in Case No. 2012-CR-0812 will be affirmed.
Facts and Course of Proceedings
{¶ 4} On June 3, 2014, Lauderdale was indicted for one count of aggravated
robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a three-year
firearm specification. The charge stemmed from allegations that on May 2, 2014,
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Lauderdale robbed the victim, Joseph Dillon, at gunpoint while Dillon was walking down
an alley between East Norman and Fairview Avenues located in the city of Dayton,
Montgomery County, Ohio. Lauderdale pled not guilty to the charge and the matter
proceeded to a three-day jury trial that concluded on October 8, 2014.
{¶ 5} At trial, Dillon testified that on the afternoon of the day in question, he was
walking down the aforementioned alley to purchase cigarettes at a nearby store when he
saw three males walking toward him. Being a resident of the area, Dillon testified that
he did not recognize any of the men, but noticed that one of them was lingering behind
the other two. Dillon then testified that as the three men made their way toward him, he
heard a gun “rack” and saw the third man who had been lingering behind jump over to
him. According to Dillon, the man then grabbed his right arm, spun him around, and
ordered him to the ground. As this occurred, Dillon testified that he saw part of a black
pistol. Dillon further testified that as he was lying face down on the ground he felt the
pistol pressed against the back of his head and the man’s knee pressed against his back.
{¶ 6} Continuing, Dillon testified that the man searched all of his pockets and took
$35 in loose cash, his cell phone, and his wallet. The cash was in denominations of a
$20, $10, and $5 bill. Dillon testified that he had folded the $10 bill into quarters (folded
in half and then folded in half again), whereas the $20 and $5 bills were simply folded in
half. Dillon also testified that after emptying his pockets, the man grabbed his glasses
from off his face and told him to stay on the ground. Thereafter, Dillon heard the three
men walk away. Once the men were gone, Dillon testified that he got up and ran to his
house to look for his cell phone in order to call 9-1-1. However, when he arrived at his
house, Dillon realized that his cell phone had been stolen during the robbery. Dillon then
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went to his neighbor's house and called 9-1-1 from there.
{¶ 7} The recording of Dillon’s 9-1-1 call was admitted into evidence. During the
call, Dillon told the operator that he was robbed at gunpoint by “one big black guy and two
skinnier black guys” and explained that the bigger man was the one who actually
performed the robbery. He described the big man as wearing “white, blue jeans,” but he
did not know what the other two men were wearing. Dillon also told the operator that the
men had left on foot toward the Dollar General on East Fairview Avenue.
{¶ 8} A few minutes after reporting the incident, Sergeant Mark Spiers of the
Dayton Police Department arrived at Dillon’s house and made contact with Dillon. Dillon
then told Spiers what had happened and gave him a description of the individual who had
robbed him. At trial, Dillon testified that he got a good look at the man who robbed him
and described him as a dark-skinned black male in his mid-twenties or thirties who
weighed 220 to 225 pounds and was roughly 5’10” to 5’11” tall. Dillon testified that the
man was wearing silver, clear-lensed glasses, blue jeans, and a sweater that was navy
blue with a design that looked like hundreds of white stars, snowflakes, flowers, or
splotches. Dillon also testified that the man was wearing a watch, belt, and no hat.
{¶ 9} Spiers testified that Dillon described the suspect as being 5’10” or 5’11” with
a dark complexion, and wearing silver glasses, blue jeans, and a blue t-shirt with dots or
stars in the middle of the chest. The incident detail history log admitted into evidence
indicated that Spiers broadcast a similar description noting that the suspect was wearing
blue jeans, a blue shirt or jacket, was 5’10”, stocky, and in his mid-twenties. Spiers
testified that his dispatch was based on the description provided by Dillon.
{¶ 10} After Spiers obtained Dillon’s description of the suspect, he put Dillon in his
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cruiser and drove around the area to see if they could locate the suspect. Approximately
15 minutes into their drive, Spiers testified that they came upon two individuals walking
past a barbershop located at 3138 North Main Street, which is near Knecht Drive and
approximately 12 blocks from where the robbery took place. According to Spiers, Dillon
indicated that one of the individuals walking past the barbershop was the man who had
robbed him. Spiers testified that the individual Dillon pointed out had a dark complexion,
was wearing silver glasses, and had on a light blue shirt. The individual was later
identified as Lauderdale.
{¶ 11} Spiers testified that Lauderdale and his companion looked nervous as he
drove by them in his cruiser. Specifically, Spiers saw the two men step back toward the
door of the barbershop and go inside the building. Thereafter, Spiers immediately pulled
into the parking lot and asked Dillon if Lauderdale was the individual who had robbed him.
To this, Spiers testified that Dillon was adamant that Lauderdale was the man who had
robbed him, but that Dillon did not recognize the other individual who was with him.
{¶ 12} Both Dillon and Spiers testified that Dillon did not have his glasses on at the
time he identified Lauderdale as his assailant. However, Dillon testified that without his
glasses he was only prevented from seeing things up close. Dillon testified that, while
blurry, he could still see from 15 to 20 feet away without his glasses, and that he was able
to see distinct facial features from a distance. Dillon specifically testified that he
recognized Lauderdale’s facial features when he identified him outside the barbershop.
{¶ 13} Spiers testified that once Dillon identified Lauderdale, Dillon began to panic
in fear of his safety. In response, Spiers drove to a nearby side street and told Dillon to
wait in the cruiser while he went to the barbershop to locate Lauderdale and the other
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individual. As he walked towards the barbershop, Spiers testified that he observed
Lauderdale and the other individual walking down Knecht Drive. Spiers then
immediately yelled for the individuals to stop, but they looked back and continued walking.
When Spiers ordered them to stop again, Lauderdale stopped while the other individual
took off running.
{¶ 14} During his initial encounter with Lauderdale, Spiers observed a white cell
phone in Lauderdale’s right hand. Thereafter, Spiers testified that he grabbed
Lauderdale, ordered him to the ground, and radioed other police crews about the fleeing
subject. In doing so, Spiers testified that his attention was focused on the fleeing suspect
for a moment, and that when he returned his attention to Lauderdale, Lauderdale no
longer had the white cell phone in his hand. Rather, Spiers observed the white cell
phone located two feet from where Lauderdale was positioned on the ground. Sergeant
Paul Sanders, who arrived at the scene later, also testified that he saw the cell phone
lying on the ground near Lauderdale. Spiers testified that he initially thought the phone
was Lauderdale’s, but later discovered that it was actually Dillon’s cell phone that had
been stolen during the robbery. Lauderdale does not dispute that the cell phone located
near his person belonged to Dillon.
{¶ 15} On cross-examination, Spiers identified the clothing that Lauderdale was
wearing at the time he was booked into jail. The clothing included a blue t-shirt with a
black logo on the front, a large cross necklace that had stars on the end of the cross, blue
jeans, and a black hat. Image stills from a security video taken at a local convenience
store next to the barbershop were admitted into evidence and depict Lauderdale wearing
the aforementioned items of clothing and accessories while purchasing a bottle of
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Gatorade just prior to his arrest. The stills show Lauderdale approaching the store’s
counter to purchase the Gatorade at 2:46 p.m. The incident history detail of Dillon’s 9-
1-1 call indicates that Dillon reported the robbery at 2:25 p.m. and told the operator that
the robbery had happened just five minutes prior.
{¶ 16} Spiers also testified that Lauderdale had $32.78 in cash on his person when
he was arrested. The denominations were a $20 bill, a $10 bill, two $1 bills, and change.
Spiers identified a photograph of the money recovered from Lauderdale, and noted that
the $10 bill was folded in the manner described by Dillon. However, no gun was ever
found on Lauderdale.
{¶ 17} Lauderdale’s mother, aunt, and cousin all testified on Lauderdale’s behalf
and each of them confirmed that they have never seen Lauderdale with a gun. They
also testified that Lauderdale spent the night at his aunt’s house on 412 Knecht Drive the
night before the robbery. His aunt testified that on the day of the robbery, Lauderdale
was at the house when she left at 7:15 a.m., but that he was no longer there when she
returned at noon. Lauderdale’s cousin testified that Lauderdale was still at 412 Knecht
Drive when he woke up, and although he could not remember the time, he claims he was
with Lauderdale until Lauderdale left to get a haircut approximately five or ten minutes
prior to Lauderdale’s arrest. His cousin also confirmed that Lauderdale was wearing a
blue shirt, blue jeans, a black hat, a cross necklace, and silver glasses. In addition,
Lauderdale’s mother testified that her son is 20 years old, 250 to 255 pounds, and 6’3” or
6’4” tall. She also testified that she has never seen her son wear a blue sweater with
hundreds of white stars or flowers on it.
{¶ 18} After the presentation of evidence, the jury deliberated and found
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Lauderdale guilty as charged. The trial court then sentenced Lauderdale to three years
in prison for aggravated robbery and an additional three years for the firearm specification
to be served consecutively for a total prison term of six years. As a result of his
conviction, Lauderdale’s community control sanctions were revoked in Case No. 2012-
CR-0812.
{¶ 19} Lauderdale now appeals from his conviction, as well as from the revocation
of his community control sanctions, raising three assignments of error for review.
First Assignment of Error
{¶ 20} Lauderdale’s First Assignment of Error is as follows:
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AND THE EVIDENCE PRESENTED WAS INSUFFICIENT, AS
A MATTER OF LAW, TO PROVE THE APPELLANT’S GUILT BEYOND A
REASONABLE DOUBT.
{¶ 21} Under his First Assignment of Error, Lauderdale disputes the legal
sufficiency and manifest weight of the evidence to sustain his aggravated-robbery
conviction with the attendant firearm specification.
{¶ 22} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
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the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.{¶ 23} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating
whether a conviction is against the manifest weight of the evidence, the appellate court
must review the entire record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in the evidence, 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.” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
evidence is subject to different interpretations does not render the conviction against the
manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,
2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.
{¶ 24} “The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve.” State v. Hammad, 2d Dist. Montgomery No.
26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d
212 (1967). Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
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476684, *4 (Aug. 22, 1997). “This court will not substitute its judgment for that of the trier
of facts on the issue of witness credibility unless it is patently apparent that the factfinder
lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign No. 97 CA 03,
1997 WL 691510, *4 (Oct. 24, 1997).
{¶ 25} As noted above, Lauderdale was found guilty of aggravated robbery in
violation of R.C. 2911.01(A)(1) with an attendant three-year firearm specification. R.C.
2911.01(A)(1) provides that: “No person in attempting or committing a theft offense * * *
shall * * * [h]ave a deadly weapon on or about the offender’s person or under the
offender’s control and either display the weapon, brandish it, indicate that the offender
possesses it, or use it[.]” A “theft offense” is, among other things, a violation of R.C.
2911.01 (aggravated robbery) and R.C. 2911.02 (robbery). R.C. 2913.01(K)(1). A
“deadly weapon” is defined as “any instrument, device, or thing capable of inflicting death,
and designed or specially adapted for use as a weapon, or possessed, carried, or used
as a weapon.” R.C. 2923.11(A). “For purposes of establishing the crime of aggravated
robbery, a jury is entitled to draw all reasonable inferences from the evidence presented
that the robbery was committed with the use of a gun, and it is not necessary that the
prosecution prove that the gun was capable of firing a projectile.” State v. Vondenberg,
61 Ohio St.2d 285, 401 N.E.2d 437 (1980), syllabus.
{¶ 26} With respect to the firearm specification, a mandatory three year prison term
is permitted where the indictment specifies and the jury finds “that the offender had a
firearm on or about the offender’s person or under the offender’s control while committing
the offense and displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or used it to facilitate the offenses.” R.C. 2941.145(A).
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“ ‘Firearm’ means any deadly weapon capable of expelling or propelling one or more
projectiles by the action of an explosive or combustible propellant. ‘Firearm’ includes an
unloaded firearm, and any firearm that is inoperable but that can readily be rendered
operable.” R.C. 2923.11(B)(1) “When determining whether a firearm is capable of
expelling or propelling one or more projectiles by the action of an explosive or combustible
propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited
to, the representations and actions of the individual exercising control over the firearm.”
R.C. 2923.11(B)(2).
{¶ 27} “Both a firearm’s existence and its operability may be inferred from the
surrounding facts and circumstances. It is not necessary to admit the firearm used
during the crime in evidence in order to establish a firearm specification.” State v. Vann,
2d Dist. Montgomery No. 22818, 2009-Ohio-5308, ¶ 27, citing State v. Murphy, 49 Ohio
St.3d 206, 551 N.E.2d 932 (1990). (Other citation omitted.) “A victim’s belief that the
weapon is a gun, together with the intent on the part of the accused to create and exploit
that belief for his own criminal purposes, is sufficient to prove a firearm specification.”
Id., citing State v. Greathouse, 2d Dist. Montgomery No. 21536, 2007-Ohio-2136.
{¶ 28} In this case, the State presented evidence demonstrating that during the
afternoon of May 2, 2014, Dillon was robbed at gunpoint as he was walking down an alley
between East Norman and East Fairview Avenues. Specifically, Dillon testified that
during the robbery he heard a gun “rack” and saw part of a black pistol as one of three
men grabbed his right arm, spun him around, and told him to get on the ground. Dillon
also testified that he felt the pistol against the back of his head as the man stole his cell
phone, wallet, $35 cash, and the glasses off his face. Dillon later identified Lauderdale
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as the man who had robbed him.
{¶ 29} The foregoing testimony clearly satisfies the elements of aggravated
robbery and the attendant firearm specification. Nevertheless, Lauderdale, maintains
that his conviction is against the manifest weight of the evidence, as he claims the weight
of the evidence fails to establish that he was the individual who robbed Dillon at gunpoint.
{¶ 30} In support of this claim, Lauderdale relies on Dillon’s description of the
robber, claiming the description was inconsistent with Lauderdale’s actual appearance.
Specifically, Lauderdale points to the fact that during Dillon’s 9-1-1 call, Dillon told the
operator that the assailant was wearing “white” jeans when his jeans were actually blue.
However, the recording of the 9-1-1 call admitted into evidence establishes that Dillon
advised the operator that the assailant was wearing “white,” and then Dillon paused for a
moment and said “blue jeans.” The manner of Dillon’s statement on the recording does
not indicate that he was describing the jeans as being white; rather, the pause in his
statement indicates that he was referring to another article of clothing. When confronted
with the discrepancy regarding the color of the jeans at trial Dillon testified that he thought
he had said the assailant was wearing “blue jeans and blue and white on his shirt.” Trial
Trans. (Oct. 6, 2014), p. 54-55. Dillon also explained that he “was shook up at the time
and * * * not sure that he said it like that or not.” Id. Regardless, when Sgt. Spiers met
with Dillon just a few minutes after the 9-1-1 call, Dillon advised Spiers that the assailant
had on blue jeans and Dillon consistently gave that description throughout the rest of the
investigation and at trial.
{¶ 31} Lauderdale also points to the fact that Dillon testified his assailant was
wearing a navy blue shirt or sweater that had a design on it that looked like hundreds of
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white splotches, stars, snowflakes, or flowers on the front, as well as a watch on his arm,
a belt, and no hat. As previously discussed, at the time of his arrest, Lauderdale was
wearing a blue t-shirt with a black logo and a large cross necklace. The evidence also
demonstrates that Lauderdale was wearing, or at least had possession of, a black hat.
Lauderdale further notes that Dillon described his assailant as being roughly 5’10” or 5’11”
tall, when Lauderdale is actually 6’3” or 6’4” tall.
{¶ 32} We agree that there are some inconsistencies with regards to Dillon’s
description of his assailant’s clothing and height. However, the jury could have
reasonably resolved these inconsistencies through other testimony and evidence in the
record. For example, Dillon correctly described Lauderdale’s skin tone, silver-framed
glasses, and big build. Dillon also testified that he recognized Lauderdale’s distinctive
facial features when he saw him standing outside the barbershop. The evidence
indicates that throughout the investigation, Dillon was adamant that Lauderdale was his
assailant. Dillon also testified that he got a good look at Lauderdale as he was walking
toward him in the alley, and that he saw Lauderdale as he grabbed him from only a short
distance away. Dillon further testified that his glasses were on at the time he observed
Lauderdale in the alley, and that his glasses were not taken from him until after
Lauderdale pushed him to the ground.
{¶ 33} While Lauderdale implies that Dillon’s lack of glasses caused him to
misidentify Lauderdale as the assailant when he saw him outside the barbershop, Dillon
testified that his vision impairment is one in which he cannot see up close, but that he is
able to see distinctive facial features from a distance. Also, with respect to Lauderdale’s
clothing, it is conceivable that Lauderdale could have changed some of his clothing
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immediately after committing the crime, as Dillon specifically testified that Lauderdale was
wearing a different shirt when he identified him at the barbershop, but that he was wearing
the same pair of jeans.
{¶ 34} We also do not find that the difference between the height Dillon estimated
and Lauderdale’s actual height renders Lauderdale’s conviction against the manifest
weight of the evidence. Dillon, who is 5’10”, testified that he thought he was close to eye
level with the assailant, but noted that he “had to look up a little” to look directly into the
assailant’s eyes. Trial Trans. (Oct. 6, 2014), p. 58. Despite Dillon being adamant that
his assailant was not 6’3” or 6’4”, and Lauderdale in fact being that height, Dillon testified
that even with the perceived height difference, he is sure that Lauderdale is the man who
robbed him at gunpoint.
{¶ 35} In addition, there is a plethora of other evidence that the jury could have
relied upon in finding Lauderdale guilty. For example, the evidence indicates that
Lauderdale had Dillon’s cell phone in his possession at the time of his arrest. Sgt. Spiers
testified that he saw a white cell phone in Lauderdale’s hand as he approached him, and
a moment later, he observed the same cell phone on the ground two feet away from
Lauderdale. There is no dispute that the white cell phone Spiers observed on the ground
was Dillon’s.
{¶ 36} In refuting Spiers’s testimony that he had possession of Dillon’s cell phone,
Lauderdale relies on the fact that his DNA was not discovered on the phone. However,
the fact that Lauderdale’s DNA was not found on the phone does not necessarily mean
that he did not have it in his possession. The forensic scientist who tested the DNA
swabs taken from the cell phone appeared at trial and testified that it is possible for
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someone to touch a cell phone and not transfer their DNA on it. This is demonstrated by
the fact that Dillon’s DNA was also not discovered on the phone, and as the owner, Dillon
would have obviously touched the phone.
{¶ 37} The evidence also demonstrates that Lauderdale had a total of $32.78 in
his possession at the time of his arrest, which was after he purchased the bottle of
Gatorade at the convenience store next to the barbershop. The total amount of money
stolen from Dillon was $35 in denominations of a $20, $10 and $5 bill, and Lauderdale
had possession of a $20 bill and a $10 bill that was folded in the same manner that Dillon
had folded the $10 bill that was stolen from him. Although no specific evidence was
presented as to the cost of the Gatorade purchased by Lauderdale, it would be
reasonable for the jury to conclude that the other $2.78 on his person could have been
change from breaking the $5 bill at the convenience store.
{¶ 38} Sgt. Spiers also testified that Lauderdale and his companion looked nervous
as his cruiser drove by them just prior to them entering the barbershop. While the owner
of the barbershop testified that he did not notice anything unusual about Lauderdale or
his companion (other than the police following them), the owner testified that neither
Lauderdale nor his companion had ever been to the shop for a haircut before and that
they left the shop as soon as Spiers’s cruiser left the parking lot.
{¶ 39} We also note that the jury was free to believe or disbelieve the testimony of
the defense witnesses, who were relatives of Lauderdale and who generally testified that
Lauderdale was at his aunt’s house at the time of the offense. The credibility of these
witnesses was for the jury to determine, and we will not disturb that determination on
appeal. Furthermore, the fact that the jury chose to believe Dillon’s testimony regarding
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his recognition of Lauderdale as his assailant and Spiers’s testimony regarding
Lauderdale’s possession of Dillon’s cell phone does not render Lauderdale’s conviction
against the manifest weight of the evidence.
{¶ 40} Based on the evidence before this court, we find the jury did not create a
manifest miscarriage of justice in finding Lauderdale guilty of aggravated robbery and the
attendant firearm specification. Lauderdale’s conviction was supported by sufficient
evidence and was not against the manifest weight of the evidence. Accordingly,
Lauderdale’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 41} Lauderdale’s Second Assignment of Error is as follows:
THE PROSECUTING ATTORNEY COMMITTED PROSECUTORIAL
MISCONDUCT THAT DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR
TRIAL.
{¶ 42} Under his Second Assignment of Error, Lauderdale claims the State
engaged in prosecutorial misconduct when the prosecutor made the following statement
about the height difference during its closing argument:
And also it makes sense that when [Dillon] was getting robbed, when
someone is walking up to you, they’re not walking at the peak of their height.
Most people slouch; they’re a little bit lower. And especially when they’re
about to attack somebody. You don’t stand up straight. I’m going to
attack you and throw you to the ground. You come in, you use your legs
as leverage. That’s what football players do, right, when they’re going to
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tackle somebody. They’re not standing up straight. They’re getting lower
down so they can take you to the ground. That’s what happened to Joseph
Dillon. That’s what the defendant did to him in this case.
Trial Trans. (Oct. 8, 2014), p. 308-309.
{¶ 43} “Generally, prosecutors are entitled to considerable latitude in opening and
closing arguments.” (Citations omitted.) State v. Whitfield, 2d Dist. Montgomery No.
22432, 2009-Ohio-293, ¶ 12. “A prosecutor may freely comment in closing argument on
what the evidence has shown and what reasonable inferences the prosecutor believes
may be drawn therefrom.” (Citation omitted.) Id. We review allegations of
prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.
Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S.
168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
{¶ 44} Our review of prosecutorial misconduct claims focuses on whether the
prosecutor’s remarks were improper and, if so, whether those comments prejudicially
affected the substantial rights of the defendant. (Citation omitted.) State v. Jones, 90
Ohio St.3d 403, 420, 739 N.E.2d 300 (2000). “The touchstone of the analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’ ” Id., quoting Smith v. Phillips,
455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the
prosecutor’s misconduct so infected the accused’s trial with unfairness that the accused’s
convictions came in violation of the right to due process. Donnelly v. DeChristoforo, 416
U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). However, where it is clear beyond
a reasonable doubt that the jury would have found the defendant guilty, even absent the
alleged misconduct, the defendant has not been prejudiced, and his conviction will not be
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reversed. (Citation omitted.) State v. Underwood, 2d Dist. Montgomery No. 24186,
2011-Ohio-5418, ¶ 21.
{¶ 45} Lauderdale failed to object to the statement at issue, so we are limited to a
plain-error review. Plain error is not present unless, but for the error complained of, the
outcome of the trial would have been different. State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph two of the syllabus. A finding of plain error should be
made with utmost caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice. Id. at paragraph three of the syllabus.
{¶ 46} Having reviewed the record, we find no plain error in the prosecutor’s
remarks about Lauderdale possibly not standing up straight and getting lower to the
ground. The remarks are reasonable inferences based on Dillon’s testimony that
Lauderdale appeared to be 5’10” or 5’11” tall and slightly above his own eye level when
Lauderdale grabbed him. We further do not find that the outcome of the trial would have
been any different had the prosecutor not made the remarks. Again, even when
considering the inconsistencies in Dillon’s description of his assailant to that of
Lauderdale himself, there was an abundance of other evidence linking Lauderdale to the
crime. Accordingly, Lauderdale’s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 47} Lauderdale’s Third Assignment of Error is as follows:
REVOCATION OF APPELLANT’S COMMUNITY CONTROL WAS BASED
ENTIRELY ON A CONVICTION THAT MUST BE REVERSED ON
APPEAL.
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{¶ 48} Under his Third Assignment of Error, Lauderdale claims the revocation of
his community control sanctions in Case No. 2012-CR-0812 was improper because the
revocation was based on the previously discussed aggravated robbery conviction in Case
No. 2014-CR-1612, a conviction that Lauderdale claims was not supported by sufficient
evidence and was otherwise against the manifest weight of the evidence. However,
since we have concluded under his First Assignment of Error that his aggravated robbery
conviction was supported by sufficient evidence and not against the manifest weight of
the evidence, we find Lauderdale’s community control sanctions were properly revoked.
Therefore, Lauderdale’s Third Assignment of Error is overruled.
Conclusion
{¶ 49} Having overruled all three assignments of error raised by Lauderdale, we
hereby affirm his conviction for aggravated robbery and the firearm specification in Case
No. 2014-CR-1612 and the revocation of his community control sanctions in Case No.
2012-CR-0812.
.............
DONOVAN, P.J. and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Meagan D. Woodall
Jeffrey T. Gramza
Hon. James A. Brogan
Hon. Dennis J. Langer