State v. Culbertson, Unpublished Decision (11-13-2000)
State v. Culbertson, Unpublished Decision (11-13-2000)
Concurring Opinion
Although I concur with the majority's decision on all assignments of error, I nonetheless feel obligated to express my concern over the prosecutor's closing remarks as addressed in assignment of error II. It is totally improper to express an opinion on truthfulness of a witness. Further, by arguing in the first person as opposed to the collective "we, the State", the matter becomes an opinion as opposed to a statement of a position. This, of course, does not rise to the level of plain error and the denial of the assignment of error is totally proper.
JUDGE SHEILA G. FARMER
Opinion of the Court
OPINION
Appellant Larry Culbertson appeals his conviction, in the Stark County Court of Common Pleas, for one count of aggravated robbery. The following facts give rise to this appeal. On December 11, 1999, appellant entered Rastetter's grocery store and robbed Donna Anderson, the cashier at the store's front counter. Appellant held a knife to Anderson's back and ordered her to empty the cash register drawer and the lottery drawer. Anderson estimated that the cash register drawer contained approximately $700, however, she did not know how much money was in the lottery drawer. During the robbery, a regular customer, William Martin, entered the store. Martin spoke to appellant, but appellant did not respond. Martin quickly turned and left the store. William DiFloure, an employee of Rastetter's store, was also working on the evening of the robbery. DiFloure was cleaning out the meat in the deli counter, about thirty feet from the cashier's counter. DiFloure observed a man, behind the cashier's counter, wearing a red, checkered coat. The man had braided hair. He could not see the man's facial features. DiFloure knew that something was happening by the positioning of the man and Anderson. DiFloure went to the back of the store and pushed a silent alarm button. Alliance City Police Officers Matthew Beech and his partner Officer LaNave arrived at the store within two minutes of receiving the radio dispatch. Donna Anderson described the robber to Officer Beech. William DiFloure also spoke to Officer Beech and indicated that he knew the name of the customer that talked to the robber as "William." Subsequently, Detective Lloyd Sampson took over the investigation. Before being assigned to the case, Detective Sampson received an anonymous telephone call from a woman who identified appellant as the robber. That same day, Lieutenant Wayt, the day's shift commander, also received an anonymous telephone call that appellant committed the robbery at Rastetter's. After being assigned to the case, Detective Sampson interviewed William DiFloure. From a photo array presented by Detective Sampson, DiFloure identified appellant as the robber. While at the grocery store, Detective Sampson telephoned William Martin, who admitted that he walked in on the robbery. Approximately fifteen minutes later, Detective Sampson met with William Martin at the Alliance Police Department. Martin gave a taped statement and identified appellant as the robber. Martin also identified appellant as the robber from a photo array. Following this interview, Detective Sampson obtained a warrant for appellant's arrest. Officers from the Alliance Police Department were unable to locate appellant at his apartment. Approximately four weeks after obtaining the arrest warrant, Detective Sampson contacted the landlord where appellant allegedly resided. The landlord consented to a search of the apartment. During the search, officers discovered three weaves or wigs of black hair. On January 20, 2000, officers arrested appellant and charged him with aggravated robbery. After a pre-trial hearing, the Alliance Municipal Court bound appellant over to the Stark County Grand Jury. On February 14, 2000, the grand jury indicted appellant on one count of aggravated robbery. At his arraignment, appellant entered a plea of not guilty and his trial commenced on April 4, 2000. Following deliberations, the jury found appellant guilty as charged in the indictment. The trial court sentenced appellant to a determinate nine year prison term. Appellant timely filed his notice of appeal and sets forth the following assignments of error for our consideration:I. THE JUDGMENT RENDERED BY THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. STATEMENTS MADE BY THE PROSECUTOR IN HER CLOSING ARGUMENT WERE SO PREJUDICIAL AND INFLAMMATORY AS TO VIOLATE APPELLANT'S CONSTITUTIONALLY PROTECTED RIGHTS.
III. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PERMITTED TESTIMONY AND ADMITTED EXHIBITS REGARDING MATTERS WHICH WERE DERIVED FROM AN ILLEGAL SEARCH OF APPELLANT'S APARTMENT.
IV. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONALLY PROTECTED RIGHTS BY HIS TRIAL COUNSEL.
(1) Have a deadly weapon on or about the offender's person or under the offender's control; (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another * * *.
Based on our review of the record, we conclude the jury's verdict, finding appellant guilty of aggravated robbery, is supported by the sufficiency of the evidence and is not against the manifest weight of the evidence. At trial, Donna Anderson, the cashier on duty, testified that appellant entered the store, came around the counter and ordered her to open the registers and give him the money. She also testified that appellant held a knife near her stomach. William DiFloure, who was also working on the evening of the robbery, testified that immediately after appellant left, Donna Anderson began crying and kept repeating that all she saw was the knife. Further, both Anderson and DiFloure testified that during the robbery, a regular customer entered the store, spoke to appellant briefly, and left. DiFloure identified the customer for the police. At trial, William Martin, the customer that evening, testified that he walked into the store during the robbery, recognized appellant because he has known him for over thirty years, talked to appellant and then left. Finally, during the search of appellant's apartment, the police found black hair weaves of long, black, braided hair, which is consistent with the description of the robber provided by Anderson. Appellant argues that William Martin's identification of him is unreliable because he only had a brief look at him and Martin has not been in regular contact with him. The record establishes that Martin recognized appellant immediately and even spoke to him. Also, the door where Martin entered the store is only four feet from the counter where appellant stood. Appellant also argues that the police should have lifted fingerprints at the scene. The officers concluded that prints could not be lifted because appellant did not touch the appropriate surfaces. Appellant introduced no evidence to rebut the officers' assessment. Based on the foregoing evidence, we conclude that the evidence was sufficient to support a conviction for aggravated robbery and the jury, in resolving conflicts in the evidence, did not clearly lose its way and create a manifest miscarriage of justice. Appellant's First Assignment of Error is overruled.
Under this rule, notice of plain error is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978),
So the explanation, Ladies and Gentlemen, is that he's telling you the truth, and again, this is the real world. This is life. This is how facts come together and the truth is told. All of the reasons in this case and all the common sense points to the fact that Larry Culbertson committed the crime of aggravated robbery at Rastetter's Market December 11, and again, I ask you to find him guilty as charged. Tr. at 186-187.
We do not find the prosecutor committed misconduct in making the above statements. Rather, the prosecutor made a fair interpretation of the evidence before the trial court. She did not express her personal belief about the credibility of the witnesses. Appellant also argues the prosecutor committed misconduct when she stated that the police received two anonymous tips, one telephone call from a female and one telephone call from a male. Tr. at 170. Appellant argues there is no evidence, in the record, that a male caller telephoned. The state concedes that based on the evidence presented at trial, it is unclear whether one of the callers was a male. However, the state did correctly inform the jury that the police received two anonymous tips indicating appellant committed the robbery. Appellant was not denied a fair trial as a result of the unintentional misstatement by the prosecutor. Appellant's Second Assignment of Error is overruled.
For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed. By: Wise, J. Edwards, J., concurs. Farmer, J., concurs separately.
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