State v. Bolware

[Cite as State v. Bolware, 2018-Ohio-4434.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-170691
C-170692
Plaintiff-Appellee, : C-170693
TRIAL NOS. B-1403009
vs. : B-1503778
B-1702916
KEVIN BOLWARE, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: November 2, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
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M OCK , Presiding Judge.
{¶1} In five assignments of error, defendant-appellant Kevin Bolware
claims that he was improperly found guilty of and sentenced for felonious assault.
For the reasons set forth below, we affirm Bolware’s conviction, but remand the
cause to the trial court for further proceedings relating to the imposition of
consecutive sentences.
Differing Accounts
{¶2} Bolware met the victim in this case in the fall of 2016. The two would
meet a few times a month for sex. On February 10, 2017, the victim invited Bolware
to her apartment. After engaging in intercourse, the two began to argue. The victim
testified that Bolware punched her in the side of the head. The victim retrieved
pepper spray from a drawer and sprayed Bolware with it. The victim testified that
Bolware then started to leave, but turned and resumed his assault. According to her,
he punched her numerous times and clawed at her eyes. He then stomped on her
while she was on the ground.
{¶3} A neighbor testified that she heard the commotion and came to
investigate. She saw Bolware standing over the victim and could smell the pepper
spray in the air. She testified that she saw Bolware stomping on the victim and
striking her several times. She yelled for Bolware to leave the victim alone, and
Bolware fled from the apartment with the victim’s cell phone and keys. A few hours
later, the victim’s eyes began to swell and she went to the hospital. The victim
suffered bruising, cuts, lacerations, and four broken ribs. An initial report was taken
by a police officer at the scene, but further investigation did not occur until later
when the victim identified Bolware as the assailant. Both the victim and the
neighbor identified Bolware from a photo array.
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{¶4} Bolware was indicted, in the case numbered B-1702916, for one count
of felonious assault and one count of aggravated robbery. As a result of the charges
and additional violations, his community control in the cases numbered B-1403009
and B-1503778 was terminated. The B-1702916 matter proceeded to a jury trial. At
the conclusion of the trial, Bolware was found guilty of felonious assault, but
acquitted on the charge of aggravated robbery. He was sentenced to eight years in
prison, which he was ordered to serve consecutively to the prison terms imposed in
the cases numbered B-1403009 and B-1503778, which had been ordered to be served
consecutively to each other.
Prosecutorial Misconduct—No Prejudice
{¶5} In the first two assignments of error, which he has argued together,
Bolware attack statements made by the prosecutor during the course of the trial.
After each statement, defense counsel had objected and requested a mistrial. The
first assignment of error claims that the trial court abused its discretion when it
failed to grant a mistrial as a result of the comments. The second assignment of
error claims that the statements deprived him of a fair trial. We will address the
assignments together.
{¶6} Bolware groups the first two instances together as attempts by the
prosecutor to improperly refer to his criminal history. The first instance occurred
during voir dire when the prosecutor said, “You are not allowed to know things about
the defendant. You are not allowed to know what if any criminal history the
defendant has. You are not allowed to know information that may be obtained
through investigative sources to determine the defendant’s background.” During
opening statements, the prosecutor told the jury that Bolware was identified when
the victim and witness reviewed a packet of information “used by police where they
put a series of mug shots together of people.”
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{¶7} Bolware groups the second two instances together as improper
attempts to denigrate defense counsel during rebuttal closing argument. In the first
instance, the prosecutor said,
[W]hat I have struck about [sic] in this case, it finally hit me, was when
[defense counsel] said to you—he talked to about the lie right from the
start. * * * What was the lie? You sat here and you listened to it
yesterday * * * when [defense counsel] stood up and told you about the
case. He talked to you about legs being grabbed, he talked about the
victim doing drugs, being a cokehead, doing cocaine * * *.
The second instance occurred a few moments later when the state characterized the
defense’s case as the “nutty and slutty” defense.
You heard all these things come out of defense counsel’s mouth * * *
His explanation of this case was a raging prostitute that was upset that
one of her johns wouldn’t come and stay with her * * * Did you hear
one scintilla of evidence to support that argument? Did anyone have
the moral courage to sit in that witness chair and say “this woman was
a prostitute?”
{¶8} But even if we were to conclude that the remarks cited were improper,
they did not prejudicially affect Bolware’s substantial rights. The granting or denial
of a motion for a mistrial rests in the sound discretion of the trial court and will not
be disturbed on appeal absent an abuse of discretion. State v. Treesh, 90 Ohio St. 3d
460, 480, 739 N.E.2d 749 (2001). To show an abuse of discretion in failing to grant a
mistrial, the defendant must demonstrate material prejudice. See State v. Adams,
144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. Similarly, the test for
prosecutorial misconduct is whether the remarks were improper and, if so, whether
they prejudicially affected the accused's substantial rights. See State v. Drummund,
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111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 226, citing State v. Smith, 14
Ohio St. 3d 13, 14-15, 470 N.E.2d 883 (1984). The touchstone of our analysis “is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.
209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
{¶9} Each instance represented an isolated comment in a trial that
spanned several days. “[I]solated comments by a prosecutor are not to be taken out
of context and given their most damaging meaning.” State v. Gapen, 104 Ohio St. 3d
358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 106, citing Donnelly v. DeChristoforo, 416
U.S. 637, 647, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Thus, “[n]ot every intemperate
remark by counsel can be a basis for reversal.” State v. Landrum, 53 Ohio St. 3d 107,
112, 559 N.E.2d 710 (1990). And there can be no prejudice where the remaining
evidence of guilt is so overwhelming that the outcome of the case would have been
the same regardless of evidence admitted erroneously. State v. Williams, 38 Ohio
St.3d 346, 349, 528 N.E.2d 910 (1988).
{¶10} In this case, the instances cited by Bolware were not so significant
that they deprived him of a fair trial. None of the comments became recurring
themes in the case, and they were not repeated. Furthermore, the evidence against
Bolware was such that we do not question the guilty finding the jury reached. The
trial court did not err when it denied Bolware’s motions for a mistrial, and he was not
denied his right to due process by comments made by the prosecutor. We overrule
Bolware’s first and second assignments of error.
Sufficiency and Weight of the Evidence
{¶11} Bolware argues his third and fourth assignments of error together. In
his third assignment of error, Bolware claims that his conviction was based upon
insufficient evidence. In his fourth assignment of error, he claims that his conviction
was contrary to the manifest weight of the evidence. We disagree.
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{¶12} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St. 3d 380, 387,
678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice. Id.
{¶13} Bolware’s argument centers solely on the relative value of the
evidence. He claims that neither the victim’s account nor the testimony of the
witness was credible. He argues that the fact that she delayed seeking medical
treatment discredited the victim’s account of the events. And he argues that there
was no physical evidence in the apartment to support the victim’s claim. But
arguments based on the value of the evidence and the credibility of witnesses are not
proper on review of evidentiary sufficiency. State v. Yarbrough, 95 Ohio St. 3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Nothing Bolware has argued supports his
contention that his conviction was based upon insufficient evidence. We overrule
Bolware’s third assignment of error.
{¶14} Turning to Bolware’s manifest-weight argument, we note that
reversing a conviction as being against the manifest weight of the evidence should be
reserved for only the most “ ‘exceptional case in which the evidence weighs heavily
against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus. The
jury, as the trier of fact, is in the best position to judge the credibility of the
witnesses. See State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967),
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paragraph one of the syllabus. After reviewing the record, we hold that there was
nothing about the testimony presented by the victim and the witness which would
make their version so incredible that it indicates the jury lost its way. We also cannot
conclude that the jury created a manifest miscarriage of justice by choosing to find
the testimony of the state’s witnesses credible. See Thompkins at 386. We overrule
Bolware’s fourth assignment of error.
Consecutive Sentences Unsupported
{¶15} In his final assignment of error, Bolware claims that the trial court
failed to make the appropriate findings when sentencing him to consecutive prison
terms. We agree.
{¶16} At the sentencing hearing, the trial court did not make any findings to
support its decision to order Bolware to serve his sentence in the case numbered B-
1702916 consecutively to the sentences imposed in the cases numbered B-1403009
and B-1503778, but findings were incorporated into the trial court’s sentencing
entry. Consecutive sentences may be imposed only if the trial court makes the
required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. In order to impose consecutive terms
of imprisonment, a trial court must make the statutory findings mandated for
consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and
incorporate those findings into its sentencing entry. Bonnell at syllabus.
{¶17} The state noted that the prosecutor mentioned factors that could have
supported the imposition of consecutive sentences and that “[w]hile the trial court
did not repeat the prosecutor’s statements, they completely justify the imposition of
a maximum, consecutive sentence.” That is insufficient. There is no indication that
the trial court agreed with the statements the prosecutor made or adopted the
statements as its own. Accordingly, we must vacate the consecutive nature of
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Bolware’s sentences and remand the cause for the trial court to consider whether
consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make
the required findings on the record and incorporate those findings in the sentencing
journal entry. We sustain Bolware’s fifth assignment of error.
Conclusion
{¶18} Having considered each of Bolware’s assignments of error, we affirm
the judgments of the trial court in part, vacate the sentences in part, and remand the
matter for further proceedings.
Judgments affirmed in part, sentences vacated in part, and cause remanded.
ZAYAS and MYERS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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