State v. Barnes

[Cite as State v. Barnes, 2023-Ohio-897.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2022 CA 00070
JAMIE BARNES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2021 CR 00101
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 21, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE D. COLEMAN BOND
PROSECUTING ATTORNEY 116 Cleveland Avenue, NW
VICKI L. DESANTIS Suite 600
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2022 CA 00070 2
Wise, J.
{¶1} Appellant Jamie Lee Barnes appeals his conviction on one count of
Felonious Assault, entered in the Stark County Court of Common Pleas following a jury
trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On March 11, 2020, the Stark County Grand Jury indicted Appellant Jamie
Lee Barnes on one count of Felonious Assault, in violation of R.C.
§2903.22(A)(1)(D)(1)(a), a second-degree felony, for allegedly causing serious physical
harm to Duane Garman on or about November 17, 2020.
{¶5} On March 1, 2022, the case proceeded to jury trial. At trial, the state of Ohio
presented testimony and evidence from Officer Steven Slack and the victim, Duane
Garman, as follows:
{¶6} The victim, Duane Garman, testified that on November 17, 2020, he
stopped at the Old Timers bar after work to meet Scott Steiner, a former colleague who
was looking for a job. (T. Vol. 2 at 43, 139). Garman usually worked until 7:00 or 8:00
p.m., but left work early that day to meet Steiner. (T. Vol. 2 at 138, 143). Steiner was a
regular at Old Timers. (T. Vol. 2 at 207). Garman had never been to this bar before so he
googled the address and arrived in his Jeep pickup between 5:45 p.m. to 6:00 p.m. (T.
Vol. 2 at 45, 139-140, 144, 149).
Stark County, Case No. 2022 CA 00070 3
{¶7} Once inside the bar, Garman encountered a man blocking his way with his
head down who said, “I bet you didn’t think you’d ever run into me again.” (T. Vol. 2 at 43,
145). Garman was shocked to realize the man was Sam Cooley, a former truck driver for
his company, who had been terminated over a year earlier for “some mishaps against the
company policy.” (T. Vol. 2 at 145, 148). Garman explained that the day Cooley was
terminated from that position, Garman had been filling in for another employee and had
to participate in Cooley’s exit interview and termination. (T. Vol. 2 at 146).
{¶8} Garman recalled that months after Cooley was terminated, Cooley had
threatened Garman at a Circle K gas station. (T. Vol. 2 at 43, 146). Garman had pulled in
to the gas station and, upon seeing Cooley there, he went over to say hello. Id. He said
Cooley was not happy to see him and told him, “You know, the only thing stopping me
from moving furniture with you right now in this parking lot is those cameras over my
head.” (T. Vol. 2 at 147). Cooley told Garman, “between now and the next time you run
into me, this is a small area, you will run into me, you better wonder if good old Sam found
out that you weren’t the guy to try to give me a bad reference.” (T. Vol. 2 at 147).
{¶9} Garman stated that he told two people he worked with about the threat, but
let it go because he did not think it really had anything to do with him. (T. Vol. 2 at 147-
148). Garman also told Steiner about the threat (T. Vol. 2 at 220). Steiner knew both
Garman and Cooley through his previous employment at the same company. (T. Vol. 2
at 210).
{¶10} However, during this encounter at Old Timers, Cooley apologized to
Garman, stating he never should have threatened him, and shook Garman’s hand. (T.
Vol. 2 at 149). Garman saw Steiner and quickly left to talk to him and his fiancée. (T. Vol.
Stark County, Case No. 2022 CA 00070 4
2 at 149). While Garman was looking at Steiner’s resume, Cooley came over again,
bought beers, and started talking and apologizing again for the previous threat. (T. Vol. 2
at 44, 81,149).
{¶11} Garman testified that Cooley started buying everyone beers, however
Garman did not drink much because he wanted to get home. (T. Vol. 2 at 150). Garman
stated that he thought Cooley was being overly nice but gave him the benefit of the doubt.
(T. Vol. 2 at 150-151). However, Garman was nervous because he observed Cooley
texting frequently on his phone, and he grew suspicious that Cooley was trying to stall for
time. (T. Vol. 2 at 65-66, 69, 151-152, 154).
{¶12} Surveillance footage during this time showed Appellant Jamie Barnes, a
black male, enter the bar and sit in the next to last seat on the opposite side of the bar
farthest away from the other men. Barnes’ seat was closest to the hallway where the
bathrooms were located. (State’s Exhibit 1A- Video #1, at 32 seconds). Barnes was
distinctively dressed in a bright yellow hoodie with a Hall of Fame green logo design with
lettering on the front and back of his hoodie, a ball cap, and black sweat pants with large
white lettering on the side of the pants. A bartender handed Barnes a beer. (State’s
Exhibit-Video #1). Barnes’s image can be clearly seen on all of the videos and the still
photograph of Barnes, taken by Officer Slack, from the video. (State’s Exhibits 1A-F;
State’s Exhibit 3). The video shows him drinking beer and filling his glass from a pitcher
of beer. State’s Exhibit 1A- Video #1, at 32 seconds. He can be seen leaving through the
hallway to go smoke at one point and then re-enter to sit at his same seat and continue
drinking. Id. at 6 minutes, 7 seconds; 12 minutes, 57 seconds. Outside surveillance
recordings showed Barnes initially enter the bar. (State’s Exhibit 1-D- Video #4, at 15
Stark County, Case No. 2022 CA 00070 5
seconds). This black and white footage similarly shows Barnes enter and exit the bar
several times. Id.
{¶13} On the surveillance video, Barnes leaves the bar and re-enters several
times through the front door. (State’s Exhibit 1-A- Video #1, leaving at 5 minutes, 30
seconds, and re-entering at 6 minutes, 45 seconds; Barnes leaving at 8 minutes, 43
seconds, and re-entering at 9 minutes, 30 seconds). Surveillance footage further shows
Barnes texting on his phone. (Id. at 7 minutes). After two beers, Barnes then appears to
pay his tab.
{¶14} Cooley can then be seen on his phone again. (Id. at 8 minutes). As Garman
got up to leave, Cooley talked him into staying until he got back from the restroom. (T.
Vol. 2 at 151). At this point, the video shows Cooley walk around the bar and go into a
hallway near the ladies’ bathroom past Barnes. Cooley was wearing a dark leather jacket,
dark hat, and white pants. (State’s Exhibit 1-A- Video #1, at 8 minutes, 24 seconds).
Footage from the video then shows Barnes get up and follow Cooley into the hallway. (Id.
at 8 minutes, 43 seconds). Surveillance footage from the hallway showed Cooley counting
money and handing it to Barnes. (State’s Exhibit 1-B- Video #2, at 8 minutes, 37 seconds).
Barnes did not hand anything back to Cooley. Instead, he returned to his same seat.
(State’s Exhibit 1-A- Video #1, at 9 minutes, 30 seconds). Approximately 20 seconds later,
the video showed Barnes turn his head as Cooley re-appeared and turned left to go to
the men’s room. He then re-entered the image and gradually walked back to the side of
the bar where Garman and Steiner were located. (Id. at 10 minutes, 52 seconds). The
video then showed Barnes leave the bar alone through the front door. (Id. at 11 minutes,
18 seconds).
Stark County, Case No. 2022 CA 00070 6
{¶15} As Garman got ready to leave again around 6:00 p.m., he thanked Cooley
for the beer, shook hands with him, and told him “we’re good,” but he later reflected that
something still felt “wrong.” (T. Vol. 2 at 44, 152; State’s Exhibit 1-A- Video #1, at 11
minutes, 32 seconds). Cooley and Steiner remained at the bar with Steiner’s fiancée.
Garman, unaccompanied, left through the front door. Id.
{¶16} As seen from the outside surveillance footage, Barnes exited the bar and
walked to the side of the building in the parking lot. (State’s Exhibit 1-C- Video #3, at 11
minutes, 22 seconds; State’s Exhibit #1-D- Video #4, at 11 minutes, 27 seconds). Garman
exited the bar and then turned slightly towards Barnes. (Id. at 11 minutes, 42 seconds).
As Garman walked outside, he paused because the cold caused his glasses to fog up.
He also looked around to check his surroundings. Garman crossed the street carrying the
manila envelope with Steiner’s resume. (T. Vol. 2 at 153; State’s Exhibit 1-C- Video #3,
at 11 minutes, 35 seconds). As Garman turned to his right, he saw the only person in the
parking lot, a black man just standing there, looking “very nervous, antsy, overanxious”.
(T. Vol. 2 at 192). Garman described the man as wearing a “bright, almost neon yellow
sweatshirt” with lettering on the front. (T. Vol. 2 at 153-154). As Garman crossed the street
he took another look at the man in the hoodie to get a good look at him. (T. Vol. 2 at 155;
State’s Exhibit 1-C Video #3, at 11 minutes, 45 seconds). Garman headed to the truck
but turned to his right to look again and instead saw a black shadow in his peripheral
vision. (T. Vol. 2 at 155).
{¶17} Outside security cameras showed Barnes follow Garman across the street,
and then both men go out of view from the cameras. Within seconds, Barnes then re-
emerged from across the street and can be seen walking down Tremont Avenue. (State’s
Stark County, Case No. 2022 CA 00070 7
Exhibit 1-D- Video #4, at 12 minutes, 8 seconds). A different angle from a third camera
outside also showed Garman leaving the bar. (State’s Exhibit 1-E- Video #5, at 11
minutes, 41 seconds). Barnes was already in the parking lot waiting for Garman. As
Garman crossed the street, his shadow displayed on the street. As Barnes crossed the
street behind Garman, his shadow also showed up. Id. At this point, Barnes’ shadow is
seen closing in behind Garman, until they both go out of range of the camera across the
street. (Id. at 11 minutes, 57 seconds).
{¶18} Garman recalled seeing the black shadow and then remembered blacking
out stating, “it was lights out.” (T. Vol. 2 at 155). Garman recalled waking up after the
attack, face down 20-25 feet from the front of his truck but not in the middle of the street.
(T. Vol. 2 at 155, 195). Garman’s glasses were gone, he was wet, and he tried to push
himself up but his arm was not working. (T. Vol. 2 at 156). Garman was disoriented, and
he realized his face was bloody, so he slowly made his way to his truck. (T. Vol. 2 at 156).
Garman called 9-1-1 and told the operator what happened, but then said he could not
stay there because people were coming out of the bar, and he did not feel safe. (T. Vol.
2 at 157). Garman did not know where the person was that hit him. (T. Vol. 2 at 158). The
9-1-1 operator told him to call when he was in a safe place, so Garman hung up and
called his fiancée to let her know what happened as he drove slowly down Tremont
Avenue. (T. Vol. 2 at 158).
{¶19} Garman then stopped in a well-lit area where Garman’s fiancée picked him
up and took him to Aultman Hospital’s emergency department. (T. Vol. 2 at 159). Garman
testified that he had a broken nose, bone fractures in his cheek, a laceration over his right
eye, a black eye, and a separated his shoulder. (T. Vol. 2 at 161). He stated that he had
Stark County, Case No. 2022 CA 00070 8
trouble keeping his eye open for a while afterwards because of the swelling. Id. He also
testified that when he was knocked unconscious and then fell to the ground, his shoulder
separated from his clavicle and was excruciatingly painful. (T. Vol. 2 at 161). Garman
testified he still has ringing in his ears and decreased range of motion to his dominant
right arm. (T. Vol. 2 at 159, 168). His medical diagnoses included assault, head injury, a
broken nose, facial cheek fracture, laceration over his right eye, black eye, head pain,
right collarbone pain, and separation of his right shoulder and collarbone. (T. Vol. 2 at
162; State’s Exhibit 4 at p. 9; State’s Exhibits 2A-C). Garman was treated and released
from the hospital and referred to an orthopedic surgeon. (T. Vol. 2 at 162).
{¶20} Garman testified that he called Scott Steiner, told him what happened, and
asked Steiner to try to find his glasses and the manila envelope. (T. Vol. 2 at 190). Finally,
Garman called the police department to make a report, and his fiancée drove him to the
station from the hospital to give a statement. (T. Vol. 2 at 164).
{¶21} Officer Steven Slack from the Massillon Police Department, testified that on
November 18, 2020, he was called to the police department lobby around 12:38 a.m., to
speak with Garman. (T. Vol. 2 at 42, 45). Officer Slack noted Garman was in a sling, and
that his face was bruised and bloody, and that he had come directly from the hospital. (T.
Vol. 2 at 42, 45). Garman told Officer Slack that while crossing the street, right before the
attack, he saw a man in a yellow hoodie with a design on the front coming towards him.
(T. Vol. 2 at 44). Garman described the man to Officer Slack as a black male,
approximately 6 feet tall, and between the ages of 27 and 40 years old. (T. Vol. 2 at 44).
The next thing Garman knew he was waking up, lying on the ground, and realized he was
injured and covered in blood. (T. Vol. 2 at 44). Garman confirmed that the man in the bar
Stark County, Case No. 2022 CA 00070 9
with a yellow hoodie was the same man standing outside the bar when he left. (T. Vol. 2
at 202).
{¶22} Garman told Officer Slack about the prior threat from Cooley.
{¶23} During an interview with Scott Steiner, Steiner told Officer Slack that he was
aware of a prior incident at Circle K where “there were some words exchanged between
the two of them [Garman and Cooley].” (T. Vol. 2 at 219-220). Steiner further let police
know that Cooley knew Jamie Barnes. (T. Vol. 2 at 219).
{¶24} In addition to speaking with Steiner. Officer Slack also spoke with two of the
bartenders working at the Old Timers Bar that night, as well as the bar manager, and
Steiner’s fiancée. (T. Vol. 2 at 73).
{¶25} In light of the threat Cooley previously made to Garman, Officer Slack
obtained a search warrant for Cooley’s cell phone records. (T. Vol. 2 at 46). Officer Slack
then went to Old Timers bar and two of the bartenders told him that the man in the yellow
hoodie was not a regular patron. Officer Slack then contacted the manager and watched
the surveillance videos from that night. (T. Vol. 2 at 47). Officer Slack identified both
Garman and Cooley, along with Steiner and his fiancée on the video. (T. Vol. 2 at 49-50).
Officer Slack identified a patron that met the description Garman provided walking into
the bar. (T. Vol. 2 at 51). Officer Slack saw this patron leaving the bar and then coming
back into the bar and taking his same seat. (T. Vol. 2 at 52). At one point, this patron met
with Cooley in the hallway in front of the ladies’ restroom. (T. Vol. 2 at 53). Officer Slack
observed Cooley counting money and then giving it to this patron. (T. Vol. 2 at 56). The
patron in the yellow hoodie then returned to his seat (T. Vol. 2 at 53). Cooley then went
to the men’s restroom, and returned to the bar where Garman was talking with Steiner.
Stark County, Case No. 2022 CA 00070 10
(T. Vol. 2 at 54). The patron in the yellow hoodie then left the bar. (T. Vol. 2 at 54). Shortly
thereafter Garman left the bar. (T. Vol. 2 at 54).
{¶26} Officer Slack described the video showing the man in the yellow hoodie
[Barnes], from outside the bar on Tremont Avenue, in the parking lot. (T. Vol. 2 at 58).
Video surveillance showed the man standing on the side of the building. Officer Slack
testified that the man went in and out of the bar quickly. (T. Vol. 2 at 60). Officer Slack
identified the man by his yellow hoodie with a design on the front chest and abdomen
area, hat, and pants. (T. Vol. 2 at 58, 61).
{¶27} Officer Slack also observed Garman leaving the bar. (T. Vol. 2 at 61). Officer
Slack explained he watched the man in the yellow hoodie walk towards Garman and saw
the man reach into his waistband. (T. Vol. 2 at 61, 63). At that point, Garman and the man
disappeared from view. (T. Vol. 2 at 61). Seconds later Officer Slack described the same
man re-enter the image and then leave on foot, until he was no longer seen on the video.
(T. Vol. 2 at 61-62).
{¶28} At the outset of his investigation, Officer Slack had not yet identified Jamie
Barnes as the man from the bar wearing the yellow hoodie. However, based upon the
fact that Garman told him Cooley had previously threatened him, and because Officer
Slack saw Cooley texting on his phone, and the video footage, he got a phone warrant
for Cooley’s cell phone records from Verizon. (T. Vol. 2 at 65). The records showed text
messages between Cooley and another person, 20 minutes prior to the assault. (T. Vol.
2 at 66). In total, there were about 20 text messages that day between Cooley and the
other person. (T. Vol. 2 at 69).
Stark County, Case No. 2022 CA 00070 11
{¶29} Officer Slack then used a program called TLO, a records database used by
law enforcement, to identify Cooley and the other person’s phone numbers. (T. Vol. 2 at
66). By inputting the phone number into the OHLEG (Ohio Law Enforcement Gateway)
program, Officer Slack obtained a photograph of the person with that phone number,
which he then used to match to the person that night in the yellow hoodie.
{¶30} As the video showed the person in the yellow hoodie also texting on his
phone, Officer Slack then reached the conclusion that the person in the yellow hoodie
was Jamie Barnes. (T. Vol. 2 at 67). Officer Slack testified that the still frame photo from
the video he captured at the bar in the hallway matched with the driver’s license picture
of Barnes. (T. Vol. 2 at 68; State’s Exhibit 1-F). Officer Slack further identified Jamie
Barnes in open court. (T. Vol. 2 at 68).
{¶31} Following the state’s witness, the State rested subject to the admission of
its exhibits, and Appellant made a motion for acquittal pursuant to criminal rule 29, which
was overruled by the trial court.
{¶32} Appellant called Scott Steiner as a defense witness. Following the testimony
of Steiner, Appellant chose not to testify and rested his case. Appellant then renewed his
motion for acquittal pursuant to criminal rule 29, which was again denied.
{¶33} On March 3, 2022, the trial concluded and the jury returned a verdict of
guilty as to the sole count of felonious assault. At that time the trial court ordered a pre-
sentence investigation.
{¶34} On April 6, 2022, the case proceeded to sentencing. At the sentencing
hearing, the court suspended sentence and placed Appellant on three years of community
control, which included, inter alia, that he serve a term of 30 days in the Stark County Jail.
Stark County, Case No. 2022 CA 00070 12
(Sent. T. at 17, 4/29/2022 Sent. Judgment Entry at 5). Appellant was also advised that
“[v]iolation of any of the terms or conditions of this community control sanction shall
lead to either a more restrictive sanction, a longer sanction, or a prison term of eight
(8) years”. (4/29/2022 Sent. Judgment Entry at 6).
{¶35} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶36} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.
{¶37} “II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.
{¶38} “III. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.”
I., II.
{¶39} We address Appellant's first and second assignments of error together, as
they raise related issues of whether the judgment convicting Appellant of felonious assault
is against the manifest weight and sufficiency of the evidence
{¶40} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, 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." State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
Stark County, Case No. 2022 CA 00070 13
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
{¶41} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."
Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
{¶42} Appellant herein was convicted of felonious assault, in violation of R.C.
§2903.11(A)(1), which states:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn;
{¶43} Appellant herein argues (1) the police failed to thoroughly investigate the
crime in this case, and (2) the victim lacked credibility and “contradicted himself several
times through his testimony.” (Appellant’s Brief at 17).
{¶44} Upon review, we find that based on the testimony of the victim Duane
Garman and Officer Slack, including Garman’s testimony as to his injuries, the Officer’s
testimony as to his investigation, the video and surveillance footage, the 20 text
messages between Appellant and Sam Cooley, and the prior threats made by Cooley to
Garman, the State presented sufficient evidence to prove that Appellant Barnes
knowingly caused serious physical harm to Garman.
Stark County, Case No. 2022 CA 00070 14
{¶45} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We note
circumstantial evidence is that which can be "inferred from reasonably and justifiably
connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph
five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and
persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595
N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶46} Appellant also argues that there were inconsistencies in the testimony at
trial. The jury as the trier of fact was free to accept or reject any and all of the evidence
offered by the parties and assess the witness's credibility. “While the trier of fact may take
note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Frye, 5th Dist. Richland No. 17CA5, 2017-Ohio-
7733, 2017 WL 4176953, ¶ 47 quoting State v. Johnson, 5th Dist. Stark No.
2014CA00189, 2015–Ohio–3113, 41 N.E.3d 104, ¶ 61, citing State v. Nivens, 10th Dist.
Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). The jury need not believe
all of a witness’ testimony, but may accept only portions of it as true. Id.{¶47} Based on the foregoing, we find that viewing the evidence in the light most
favorable to the prosecution, the jury could find that Appellant assaulted and caused
Stark County, Case No. 2022 CA 00070 15
serious physical harm to Duane Garman. The jury was in the best position to determine
the credibility of the witnesses and could choose to believe the State’s witnesses over
Appellant's version of events. The jury thus had sufficient evidence to find Appellant guilty
of felonious assault
{¶48} After a careful review of the entire record, weighing the evidence and all
reasonable inferences and considering the credibility of the witnesses, this Court cannot
conclude that the trier of fact clearly lost its way when it found Appellant guilty of Felonious
Assault. Based on the foregoing, this Court does not find that Appellant's conviction was
against the manifest weight of the evidence
{¶49} Accordingly, we find Appellant's conviction is supported by sufficient
evidence and is not otherwise against the manifest weight of the evidence.
{¶50} Assignments of Error I and II are denied.
III.
{¶51} In his third assignment of error, Appellant argues he was denied a fair trial
due to prosecutorial misconduct. We disagree.
{¶52} Appellant identifies three statements made by the prosecutor which he
asserts arise to prosecutorial misconduct and otherwise deprived him of his due process
rights due to: (1) during opening statements the prosecutor said “This is a case about a
man who embody [sic] what evil truly is, and that man is the Defendant, Jamie Barnes.”
(T. Vol. 2 at 28); (2) during closing arguments the prosecutor stated “This was the action
of a man who embodied what evil truly is” (T. Vol. 2 at 250), and (3) during closing
arguments the prosecutor stated “And I would submit to you that someone who attacks a
Stark County, Case No. 2022 CA 00070 16
complete stranger, someone they don’t know, for money, that they got paid by someone
else, a person like that is evil.” (T. Vol. 2 at 270).
{¶53} To address these arguments, we must first determine: (1) whether the
prosecutor's conduct was improper and (2) if so, whether it prejudicially affected
Appellant's substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883(1984). The inquiry is guided by four factors: (1) the nature of the remarks; (2) whether
an objection was made by counsel; (3) whether corrective instructions were given by the
court; and (4) the strength of the evidence against the defendant. Sidney v. Walters, 118
Ohio App.3d 825, 829, 694 N.E.2d 132 (3d Dist.1997).
{¶54} Initially, we note that Appellant did not object to the allegedly improper
statements. “A claim of prosecutorial misconduct is waived unless raised at trial, and if so
waived, can serve as the basis for relief only if the conduct constitutes plain error.” State
v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 24. Plain error is a
discretionary doctrine to be used with the utmost care by the appellate court in exceptional
circumstances to avoid a manifest miscarriage of justice where an obvious error affected
substantial rights, meaning it was outcome determinative. State v. Noling, 98 Ohio St.3d
44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62, applying Crim.R. 52(B).
{¶55} In examining the nature of the statements, we note that the challenged
comments were made in the opening statement and closing arguments, which jurors were
instructed not to consider as evidence. (T. Vol. 2 at 27, 239). The trial court instructed the
jury that the evidence in Appellant's case does not include the indictment, opening
statements, or the closing arguments. (T. Vol. 2 at 239) Moreover, the trial court told the
jury that they were the judges of the facts, the credibility of the witnesses, and the weight
Stark County, Case No. 2022 CA 00070 17
of the evidence. (T, Vol. 2 at 240). A presumption always exists that the jury followed the
trial court's instructions. State v. Loza (1994), 71 Ohio St.3d 61, 79, 641 N.E.2d 1082;
Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), at paragraph four of the
syllabus, rehearing denied, 54 Ohio St.3d 716, 562 N.E.2d 163..
{¶56} As to the prosecutor’s characterization of Appellant as evil, it has been held
that “calling an act evil can be expected hyperbole in the ardor of the moment, but it has
been said the prosecutor should not apply these types of derogatory terms to the
defendant personally.” See State v. Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561(1982), fn. 9 (where the case was already being reversed for a new trial on unrelated
grounds, the Court found extensive prosecutorial misconduct for many reasons, including
the prosecutor's characterization of the defendant “in derogatory terms clearly designed
to inflame the jury”).
{¶57} However, while such characterization may be improper, we find no plain
error. Based on our review of the entire case, the contested remarks were not outcome
determinative and did not deny Appellant a fair trial. Accord State v. Lundgren, 11th Dist.
Lake No. 90-L-15-140 (Sept. 14, 1993) (no plain error where prosecutor paraphrased
from the bible, “you have an opportunity to put this evil from the midst of us”), aff'd 73
Ohio St.3d 474, 488, 653 N.E.2d 304 (1995) (improper comment but no plain error in guilt
phase of death penalty case); State v. Jefferson, 2d Dist. Montgomery No. 15828 (Mar.
14, 1997) (no reasonable probability outcome was affected by the prosecutor's
characterization of the defendant as “an evil man” during closing argument); State v.
Smith, 1st Dist. Hamilton No. C-860865 (Mar. 16, 1988) (even though the appellate court
was already reversing on various other grounds, it found no plain error where the
Stark County, Case No. 2022 CA 00070 18
prosecutor called the defendant “evil,” “vicious,” “cruel,” and a “piranha”), rev'd on other
grounds, State v. Smith, 49 Ohio St.3d 137, 146, 551 N.E.2d 190 (1990) (upholding the
convictions).
{¶58} Furthermore, while the prosecutor's statements in this case may have been
improper, we cannot conclude, based on all of the evidence produced at trial, that there
was a reasonable probability that, but for the prosecutor's statement, the result of the trial
would have been different.
{¶59} Having found that Appellant was not prejudiced by the prosecutor’s
statements, we find Appellant’s third assignment of error not well-taken and overrule
same.
{¶60} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas of Stark County, Ohio is affirmed.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
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