[Cite as State v. Jackson,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No: 11CA20 : v. : : DECISION AND Bryan W. Jackson, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: December 27, 2012

APPEARANCES:

Erik P. Henry, CARPENTER LIPPS & LELAND LLP, Columbus, Ohio, for Appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Matthew L. O’Leary, Pickaway County Assistant Prosecuting Attorney, Circleville, Ohio, for Appellee.

Kline, J.:

{¶1} Bryan W. Jackson (hereinafter “Jackson” or “Gucci”) appeals the judgment

of the Pickaway County Court of Common Pleas, which convicted him of aggravated

robbery with a firearm specification, petty theft, and having a weapon while under

disability. Jackson raises numerous arguments on appeal. First, he argues that the trial

court should have suppressed evidence related to several photo lineups. Because the

photo lineups were not unnecessarily suggestive, we disagree. Next, Jackson contends

that he received ineffective assistance of counsel. We disagree. Jackson’s trial

counsel was not deficient in most instances, and the one instance of deficiency did not

result in prejudice. Furthermore, many of the complained-of actions were part of a

reasonable trial strategy. Next, Jackson argues that he was the victim of prosecutorial Pickaway App. No. 11CA20 2

misconduct. Because the prosecutor’s actions were not improper, we disagree. Finally,

Jackson contends that his convictions are against the manifest weight of the evidence.

We disagree because the jury could have reasonably concluded that the various

offenses had been proven beyond a reasonable doubt. Accordingly, we overrule

Jackson’s assignments of error and affirm the judgment of the trial court.

I.

A. The Incident

{¶2} Paulica Haddox (hereinafter “Haddox”) and Melissa Fowler (hereinafter

“Fowler”) had been staying at a house owned by Allen Hill (hereinafter “Hill”). On

December 11, 2010, Haddox parked her van in front of Hill’s house. After Haddox and

Fowler got out of the van, they noticed Floyd Jordan (hereinafter “Jordan” or “Spanky”)

and Jackson walking towards them. At trial, Fowler testified as to what happened next:

A. Spanky yelled my name and then he yelled at me and

told me to come here.

***

Q. * * * How did you feel when you heard Spanky yelling

your name?

A. Threatened. He screamed it like I knew something was

wrong.

Q. And what were they doing as he screamed it?

A. Just walking.

*** Pickaway App. No. 11CA20 3

Q. What did you do after you felt threatened by the way he

yelled your name?

A. I started walking faster, trying to make it into the house.

***

Q. And what happened when you got up onto [the] porch?

A. I got to the front door and it was locked and I was beating

on the front door, and [Hill] came and unlocked it and then

we just all went in the house at once.

Q. Who was on the porch then when the door opened?

A. Me, [Haddox], Spanky and Gucci.

***

Q. What happens when the door swings open?

A. We just all kind of went in the door together * * *.

Transcript at 214-218.

{¶3} Once inside the house, Jackson held a gun and questioned Fowler about

two men named “Rocky” and “Joe.” Fowler responded that she did not know what

Jackson was talking about. Fowler’s response prompted Jackson to say, “Check your

phone bitch.” Transcript at 219. Jackson then took Fowler’s phone out of her hand. A

short time later, Jackson put his gun to Fowler’s head and said, “Give me your sh*t! Do

you want to die bitch?” Transcript at 256. Jackson then took $150 from Fowler, and

Jackson and Jordan left after that. (For his participation in this incident, Jordan was

convicted of both complicity to aggravated robbery and complicity to petty theft. See Pickaway App. No. 11CA20 4

State v. Jordan, 4th Dist. No. 11CA14,

. Jordan’s trial took place before

Jackson’s trial.)

{¶4} Fowler called 911 after Jackson and Jordan left. She told the operator

that somebody had “held a gun to [her] and * * * took [her] phone.” Fowler also said that

it was “Floyd and I don’t know the other one they call him Gucci.” Eventually, the police

responded to Fowler’s call.

B. The Photo Lineup

{¶5} On December 14, 2011, Sergeant Bob Chapman (hereinafter “Sergeant

Chapman”) of the Circleville Police Department conducted photo lineups with Fowler

and Haddox.

Sergeant Chapman testified that the “folder system”

he utilized in this case consisted of basically the method set

forth in R.C. 2933.83(A)(6). Chapman used one “suspect

photograph” of Jackson, five “filler photographs” * * * that

matched the description of the defendant, four “blank

photographs” that contained no image, and ten empty

folders.

Sergeant Chapman followed the same procedure with

respect to co-defendant [sic] Floyd “Spanky” Jordan.

Chapman told Melissa Fowler that he would be

allowing her to view a photo array that consisted of ten

numbered folders that contained either a photo of someone

or a blank piece of paper. Fowler was instructed to look Pickaway App. No. 11CA20 5

inside each folder as Chapman handed them to her and not

to say anything until she viewed all of them.

Sergeant Chapman told Fowler that the photo arrays

may or may not contain a photo of the alleged perpetrator.

Fowler was also advised that she was not obligated to

identify anyone and that she should not identify anyone

unless she was certain of her choice.

Per the testimony of Sergeant Chapman, Melissa

Fowler identified Floyd “Spanky” Jordan in folder #3 of his

array. Ms. Fowler signed Jordan’s photo sheet. Ms. Fowler

identified defendant Bryan Jackson (aka: “Gucci”) in folder

#6 of his array. Ms. Fowler signed Jackson’s photo sheet as

well.

Sergeant Chapman testified that the same folder

system was used with respect to Paulica Haddox. Ms.

Haddox identified Floyd “Spanky” Jordan in folder #3 of his

array. Ms. Haddox signed Jordan’s photo sheet.

Furthermore, Ms. Haddox identified defendant Bryan

Jackson in folder #3 of his array and signed the photo sheet.

This concluded the two photo arrays. April 15, 2011

Decision and Entry. Pickaway App. No. 11CA20 6

{¶6} Sergeant Chapman conducted the photo lineups even though he knew

Jordan’s and Jackson’s identities. And as Sergeant Chapman later testified, the

Circleville Police Department had not yet adopted specific procedures for photo lineups.

C. Pretrial Issues

{¶7} On January 7, 2011, a Pickaway County Grand Jury indicted Jackson for

(1) aggravated burglary with a firearm specification, (2) aggravated robbery with a

firearm specification, (3) kidnapping with a firearm specification, (4) petty theft, and (5)

having a weapon while under disability. Prior to Jackson’s trial, the state dismissed the

charges for aggravated burglary and kidnapping.

{¶8} On March 11, 2011, Jackson filed a motion to suppress the results of the

photo lineups. Jackson argued that the photo lineups did not conform with R.C.

2933.83. The trial court, however, denied Jackson’s motion to suppress. As the trial

court found,

The only marked deviation from R.C. 2933.83 was Sergeant

Chapman’s failure to state in writing why it was impracticable

for a “blind administrator” to conduct the photo lineup as

directed in R.C. 2933.83(B)(2). Likewise, as brought out on

cross-examination, Sergeant Chapman did not instruct the

witnesses to comment immediately upon opening each

folder as to whether or not the photograph was of the person

responsible for the crime. R.C. 2933.83(A)(6)(f). Rather,

Sergeant Chapman instructed the witnesses to view all ten

folders before indicating which numbered folder, if any, was Pickaway App. No. 11CA20 7

the perpetrator. There was nothing improper about using

this method as opposed to R.C. 2933.83(A)(6)(f).

Lastly, as testified to by Sergeant Chapman, the

Circleville Police Department has yet to formally adopt

specific procedures for conducting lineups as directed by

R.C. 2933.83(B). This failure, along with the other

deviations, does not automatically render the photo lineup[s]

in this case inadmissible. Any such deviations may be

argued to a jury at trial. April 15, 2011 Decision and Entry.

{¶9} Jackson also filed several motions in limine. In one of these motions,

Jackson “request[ed] the court to exclude any and all evidence of the Defendant’s prior

conviction for carrying a concealed weapon.” April 13, 2011 Motion in Limine. The trial

court, however, denied this particular motion by saying: “[T]his is a motion in limine and

for this purpose I show that it will be denied, subject to the court granting a limiting

instruction to the jury in the event the defendant even testifies. I mean we don’t even

know if that’s going to happen so it’s clearly just a preliminary matter at this point.”

Transcript at 105-106.

D. The Trial

{¶10} During the state’s opening argument, the prosecutor made several

references to drugs, addiction, and the drug problem in the community. The prosecutor

introduced the topic of drugs by saying: “[T]he Defendant will present evidence as well.

Very likely a lot of you simply shouldn’t believe these witnesses, that there was no gun.

The defendant can make that argument because Melissa Fowler and Paulica Haddox Pickaway App. No. 11CA20 8

aren’t saints. They’ve both struggled with drug addiction. The state is not trying to hide

that from you today.” Transcript at 200.

{¶11} Defense counsel also referenced drugs during his opening argument. For

example, in assessing witness credibility, Jackson’s trial counsel asked the jury to

“[t]ake into consideration the testimony, the behavior, the mentality of the drug addict * *

*.” Transcript at 205.

{¶12} Fowler, Haddox, and Hill all testified on behalf of the state. Their

testimony was not consistent as to every detail, but each of them testified that Jackson

pointed a gun at Fowler. Furthermore, both Fowler and Haddox testified that Jackson

took Fowler’s money and cell phone.

{¶13} Fowler and Haddox also testified about their involvement with drugs. And

on cross-examination, Jackson’s trial counsel asked both Fowler and Haddox about

apparent inconsistencies between their testimony during Jordan’s trial and their

testimony in the present case.

{¶14} Jordan testified on behalf of the defense. According to Jordan, Jackson

did indeed confront Fowler because she was “bad mouthing Gucci.” Transcript at 282.

But Jordan testified that Jackson did not (1) pull out a gun or (2) take Fowler’s money or

cell phone. Instead, Jordan testified that Jackson simply took Fowler’s “drugs off the

table and walked out of the house.” Transcript at 285. (Jackson’s trial counsel

attributed Fowler’s 911 call to her “freaking out because she [did] not have her drugs.”

Transcript at 203-204.)

{¶15} Jackson also testified in his defense, and he admitted to confronting

Fowler at Hill’s house. But Jackson denied (1) that he had a gun or (2) that he took Pickaway App. No. 11CA20 9

Fowler’s money. Instead, Jackson testified that he simply took Fowler’s drugs and her

cell phone.

{¶16} During Jackson’s direct testimony, Jackson’s trial counsel asked Jackson

about some of his prior convictions, including the conviction for carrying a concealed

weapon.

{¶17} Eventually, the jury found Jackson guilty of (1) aggravated robbery with a

firearm specification, (2) petty theft, and (3) having a weapon while under disability.

E. The Sentence

{¶18} The state recommended the following sentence: “[N]ine years total[.] * * *

[S]ix years on the aggravated robbery, plus the three on the specification. The three

years on the weapons, ask that to be run concurrent, the same with the petty theft * * *.”

Transcript at 347. Jackson’s trial counsel agreed with the state’s recommendation. But

in explaining why he agreed, Jackson’s trial counsel said that Jackson would be eligible

for judicial release “after * * * five years.” Transcript at 348. This statement was not

accurate because a sentence for a firearm specification is mandatory. R.C.

2929.14(B)(1)(a)(ii). Therefore, under the state’s recommended sentence, Jackson

would have been eligible for judicial release after eight years, not five. See R.C.

2929.20(A)(1)(a) and 2929.20(C)(4). Regardless, the trial court did not follow the jointly

recommended sentence and, instead, sentenced Jackson to a total combined prison

term of twelve years.

{¶19} Jackson appeals and asserts the following assignments of error: I. “THE

TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION TO SUPPRESS

IDENTIFICATIONS MADE DURING PHOTO LINEUPS. SAID ERROR DEPRIVED Pickaway App. No. 11CA20 10

APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW.” II. “STATEMENTS MADE

BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT

THEREBY DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW, IN

VIOLATION OF APPELLANT’S FIFTH, SIXTH AND FOURTEENTH AMENDMENT

RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND

16, ARTICLE I OF THE OHIO CONSTITUTION.” III. “TRIAL COUNSEL RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT’S

RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, AND SECTION[S] 10 AND 16, ARTICLE I OF THE

OHIO CONSTITUTION.” And IV. “THE TRIAL COURT VIOLATED APPELLANT’S

RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT

OF CONVICTION WHEN THAT JUDGMENT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

II.

{¶20} In his first assignment of error, Jackson contends that the trial court should

have granted his motion to suppress evidence related to the photo lineups.

{¶21} Our “‘review of a motion to suppress presents a mixed question of law and

fact. When considering a motion to suppress, the trial court assumes the role of trier of

fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.’” State v. Roberts,

,

,

, quoting State v. Burnside,

,

, Pickaway App. No. 11CA20 11

. Therefore, we “must accept the trial court’s findings of fact if they

are supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these

facts as true, [we] must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.

Accord Roberts at ¶ 100; State v. Stepp, 4th Dist. No. 09CA3328,

, ¶

14.

{¶22} We “apply a two-prong test in determining the admissibility of challenged

identification testimony. First, the defendant bears the burden of demonstrating that the

identification procedure was unnecessarily suggestive. If this burden is met, the court

must then consider whether the procedure was so unduly suggestive as to give rise to

irreparable mistaken identification.” State v. Robinson, 8th Dist. No. 94293, 2010-Ohio-

5776, ¶ 14, citing State v. Page, 8th Dist. No. 84341,

; Manson v.

Brathwaite,

,

,

(1977). Under the second

prong, “the issue is whether the identification, viewed under the totality of the

circumstances, is reliable despite the suggestive procedure.” State v. Wills,

,

(8th Dist. 1997).

A.

{¶23} Initially, Jackson argues that results of the photo lineups should have been

suppressed because law enforcement did not comply with R.C. 2933.83.

{¶24} The Second Appellate District discussed R.C. 2933.83 in State v.

Stevenson, 2d Dist. No. 24821,

. As the court noted, R.C. 2933.83

“requires any law enforcement agency or criminal justice

entity that conducts live lineups and photo lineups to adopt Pickaway App. No. 11CA20 12

specific procedures for conducting the lineups.” State v.

Ruff, 1st Dist. [] No. C-110250,

. These

procedures include, inter alia, using “a blind or blinded

administrator” to conduct a photo lineup. R.C.

2933[.]83(B)(1). Under R.C. 2933.83(C)(1), evidence of a

failure to comply with the required protocol “shall be

considered by trial courts in adjudicating motions to

suppress eyewitness identification resulting from or related

to the lineup.”

Stevenson at ¶ 16.

{¶25} It is undisputed that law enforcement did not comply with R.C. 2933.83.

Nevertheless, failure to comply with R.C. 2933.83 does not, by itself, warrant the

suppression of evidence. “The language of R.C. 2933.83(C)(1) -- particularly the

phrase ‘in adjudicating’ -- implies that the actual basis for suppression is not rooted in

the statute, but is instead extraneous to it.” Ruff at ¶ 7. Therefore, courts have found

that “‘R.C. 2933.83(C)(1) does not provide an independent ground for suppression, and

that [a] trial court [errs] in relying solely on the statute in suppressing’ an identification.”

(Alterations sic.) Stevenson at ¶ 16, quoting Ruff at ¶ 7. We agree. Accordingly, we

must determine whether the photo lineups were unnecessarily suggestive. And here,

we find that they were not.

B.

{¶26} First, we find nothing unnecessarily suggestive about the photographs in

and of themselves. All of the individuals in the photo lineups share similar Pickaway App. No. 11CA20 13

characteristics -- that is, they all appear to be African American males, in their mid-to-

late 20s, with similar heights and weights. There is nothing about Jackson’s photograph

that would cause it to stand apart from the other photographs.

{¶27} Furthermore, there is no evidence that the procedures utilized by Sergeant

Chapman caused the photo lineups to be unnecessarily suggestive. All of Jackson’s

procedure-related arguments rely on the “appearance of suggestiveness” as opposed to

actual evidence of suggestiveness. Brief of Defendant-Appellant at 16. For example,

Jackson argues that, “[b]ecause Chapman knew the suspects and yet administered the

lineups, the lineups were suggestive.”

We disagree. Despite Sergeant Chapman’s

knowledge of Jackson and Jordan, there is no evidence that Sergeant Chapman unduly

influenced the identification process. And regardless of Jackson’s precise argument,

there is no evidence that law enforcement did anything to make the identifications of

Jackson and Jordan more likely.

{¶28} Accordingly, we find that the photo lineups were not unnecessarily

suggestive. “As a result, we need not address the second prong of the identification-

testimony test (the reliability prong).” State v. Lewis, 2d Dist. No. 24271, 2011-Ohio-

5967, ¶ 30. And thus, we overrule Jackson’s first assignment of error.

III.

{¶29} For ease of analysis, we will review Jackson’s third assignment of error

out of order. In his third assignment of error, Jackson contends that he received

ineffective assistance of counsel.

{¶30} “In Ohio, a properly licensed attorney is presumed competent. * * * The

appellant bears the burden of proving that his trial counsel was ineffective.” State v. Pickaway App. No. 11CA20 14

Hamblin,

,

(1988); accord State v. Norman,

4th Dist. Nos. 08CA3059 & 08CA3066,

, ¶ 65. To secure reversal for

the ineffective assistance of counsel, one must show two things: (1) “that counsel’s

performance was deficient * * *[,]” which “requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced the defense

* * *[,]” which “requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington,

,

,

(1984); accord Norman at ¶ 65. “Failure

to satisfy either prong is fatal as the accused’s burden requires proof of both elements.”

State v. Hall, 4th Dist. No. 07CA837,

, citing State v. Drummond,

,

,

, ¶ 205.

A.

{¶31} Initially, Jackson contends that trial counsel was ineffective for failing to

introduce evidence about the pretrial photo lineups. Specifically, Jackson argues the

following: “Trial counsel possessed impeaching evidence on the State’s witnesses and

the identifications made in this case, the Ohio Revised Code specifically permits

presenting this evidence, and yet trial counsel failed to present anything at trial on the

failure to comply with R.C. 2933.83.” Brief of Defendant-Appellant at 26.

{¶32} Based on trial counsel’s strategy, we see nothing deficient about the

failure to introduce evidence related to the photo lineups. “When considering whether

trial counsel’s representation amounts to deficient performance, ‘a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable Pickaway App. No. 11CA20 15

professional assistance.’” State v. Porter, 4th Dist. No. 10CA15,

,

quoting

. In other words, we “must be ‘highly deferential to counsel’s

performance and will not second-guess trial strategy decisions.’” State v. Simms, 10th

Dist. No. 10AP-1063,

, ¶ 46, quoting State v. Tibbetts,

,

(2001). And here, the state argues the following:

Trial counsel’s decision fell soundly within the realm of trial

tactics or strategy in that Appellant’s direct testimony

acknowledged he was present with the State’s witnesses at

the Norfolk Avenue Address and committed only a petty

theft, not robbery. Arguing to the jury that he was

simultaneously present to commit that crime and

misidentified by the witnesses when he did so was

presumably not deemed an effective argument by trial

counsel. The logical grounds for this tactical decision are

self evident. Brief of Plaintiff-Appellee at 14.

We agree with the state’s argument. Therefore, Jackson cannot overcome the

presumption that his trial counsel’s actions were part of a sound trial strategy. See

Porter at ¶ 38, citing

.

B.

{¶33} Next, Jackson contends that trial counsel was ineffective for “fail[ing] to

object to * * * numerous instances of prosecutorial misconduct.” Brief of Defendant-

Appellant at 26. Pickaway App. No. 11CA20 16

{¶34} Jackson also makes prosecutorial-misconduct arguments under his

second assignment of error. And rather than analyze the complained-of actions under

multiple standards of review, we will use the test for determining whether prosecutorial

misconduct actually occurred. If prosecutorial misconduct did not occur, the failure to

object cannot constitute ineffective assistance of counsel. See State v. Witherspoon,

8th Dist. No. 94475,

, ¶ 33 (“[T]he failure to do a futile act cannot be the

basis for claims of ineffective assistance of counsel and is not prejudicial.”). And here,

we find that prosecutorial misconduct did not occur.

1.

{¶35} “The test for prosecutorial misconduct is whether the conduct was

improper and, if so, whether the rights of the accused were materially prejudiced.” State

v. Leonard, 4th Dist. No. 08CA24,

, ¶ 36, citing State v. Smith,

,

,

, ¶ 45, in turn citing State v. Smith,

,

(1984). “The ‘conduct of a prosecuting attorney during

trial cannot be grounds for error unless the conduct deprives the defendant of a fair

trial.’” State v. Givens, 4th Dist. No. 07CA19,

, quoting State v.

Gest,

,

(8th Dist. 1995). Accord State v.

Apanovitch,

,

(1987). “Prosecutorial misconduct

constitutes reversible error only in rare instances.” State v. Edgington, 4th Dist. No.

05CA2866,

, citing State v. Keenan,

,

(1993). The “touchstone of analysis * * * is the fairness of the trial, not the

culpability of the prosecutor. * * * The Constitution does not guarantee an ‘error free,

perfect trial.’” Leonard at ¶ 36, quoting

. Pickaway App. No. 11CA20 17

2.

{¶36} First, Jackson argues that the prosecutor “inappropriately invited the jury

to convict Jackson to cure a community drug problem.” Brief of Defendant-Appellant at

26.

{¶37} “[T]he prosecutor may not invite the jury to judge the case upon standards

or grounds other than the evidence and law of the case. Thus, [the prosecutor] cannot

inflame the passion and prejudice of the jury by appealing to community abhorrence or

expectations with respect to crime in general, or crime of the specific type involved in

the case.” State v. Draughn,

,

(5th Dist. 1992);

accord State v. Dyer, 4th Dist. No. 07CA3163,

.

{¶38} During opening arguments, the prosecutor made the following statement:

“The State’s case is premised on the idea that there is a very serious problem in this

community. The only way to begin to fix that problem is to fulfill our obligation and our

responsibility to seek justice, regardless of who sits on which side of the [aisle],

regardless of who the victims of these crimes may be.” Transcript at 200. The

prosecutor also mentioned the drug problem during closing arguments. Because of

these statements, Jackson claims the prosecutor urged “the jury to return a verdict that

was not based on the charges in the case, but one that would address the drug problem

in the community.” Brief of Defendant-Appellant at 21. We disagree.

{¶39} “The effect of the prosecutor’s conduct must be considered in context of

the whole case.” State v. Powers, 9th Dist. No. 2285-M,

, *3 (June 29,

1994), citing State v. Maurer,

,

(1984). And

here, we agree that “[a]ll of the prosecutor’s comments regarding drugs, drug use, and Pickaway App. No. 11CA20 18

drugs in the community were directed at bolstering the testimony of the State’s own

witnesses, not convicting Appellant for crimes with which he was not charged.” Brief of

Plaintiff-Appellee at 7; see generally State v. Johnson, 5th Dist. No. 99-CA-26,

, *6 (Nov. 5, 1999) (“[T]he prosecutor may bolster his own witnesses * * *.”).

The prosecutor’s statements did not ask the jury to “send a message” to the community.

See Dyer at ¶ 47. Instead, because many of the state’s witnesses are part of the drug

subculture, the prosecutor had to explain “why the State would present a case to a jury

with seemingly unsympathetic victims and witnesses.” Brief of Plaintiff-Appellee at 8.

{¶40} Accordingly, we cannot find prosecutorial misconduct based on the

various references to drugs.

3.

{¶41} Next, Jackson contends that the prosecutor “improperly vouched for the

reliability of the State’s witnesses in a case where the main issue was credibility of

witnesses * * *.” Brief of Defendant-Appellant at 26-27.

{¶42} “Generally, prosecutors are entitled to considerable latitude in opening

and closing arguments.” State v. Whitfield, 2d Dist. No. 22432,

.

For example, prosecutors “can bolster [their] own witnesses, and conclude by saying, in

effect, ‘The evidence supports the conclusion that these witnesses are telling the truth.’”

Draughn,

,

. But a prosecutor “cannot say, ‘I

believe these witnesses,’ because such argument invades the province of the jury, and

invites the jury to decide the case based upon the credibility and status of the

prosecutor.”

citing Smith,

,

; accord State v. Fether,

5th Dist. No. 2011-CA-00148,

. Pickaway App. No. 11CA20 19

{¶43} During closing arguments, the prosecutor made the following statement

about Fowler, Haddox, and Hill:

There’s not any magic moment here, this comes down to

who you believe and why you believe them. * * * Why would

these three people be here today? What are they getting out

of this? The headache of having to come and testify in front

of all these people, having to see this defendant again?

There’s no benefit to that. There’s no point, unless they’re

telling the truth and this happened, and they are victims, and

if that is the case this defendant is guilty. Transcript at 312.

Later, the prosecutor said, “The question you have to ask is who’s credible? Why would

these people come here today? Why would they continue to testify at hearing after

hearing after hearing? To make up a story? Because it’s the truth.” Transcript at 319.

{¶44} Jackson argues that these statements were improper, but we disagree. A

prosecutor may comment upon the circumstances of

witnesses in their testimony, including their interest in the

case, their demeanor, their peculiar opportunity to review the

facts, their general intelligence, and their level of awareness

as to what is going on. The prosecutor may conclude by

arguing that these circumstances make the witnesses more

or less believable and deserving of more or less weight.

State v. Clay,

,

,

(8th Dist.). Pickaway App. No. 11CA20 20

Here, the prosecutor never said that he personally believed the state’s witnesses.

Rather, the prosecutor argued that, under the circumstances, it was more likely that the

state’s witnesses were telling the truth. We must view the state’s argument “in its

entirety.” Whitfield at ¶ 12. And each reference to “the truth” was preceded by a

comment about the witnesses’ circumstances.

{¶45} Accordingly, we cannot find that the prosecutor improperly vouched for the

credibility of the state’s witnesses.

4.

{¶46} Next, Jackson contends that the prosecutor “wrongly bolstered the State’s

case by telling the jury to convict Jackson because a different jury had already viewed

the evidence and found Jackson’s co-offender guilty.” Brief of Defendant-Appellant at

27.

{¶47} During closing arguments, the prosecutor made the following statement

about the defense witnesses:

You know it comes down to credibility. It’s almost a case of

he said and she said really he/she/she and two others. You

heard the 911 tape also. Consider who was saying what.

On the defendant’s side we heard from Mr. Jordan, who is a

career felon also himself convicted of the same thing as the

defendant here is accused of today. I won’t go through and

list his convictions, but you heard drug possession,

trafficking, aggravated burglary, served time in prison, those

are serious crimes. I say that because all that bears on his Pickaway App. No. 11CA20 21

credibility on whether he is a truthful or honest person or not.

The same goes for the defendant, his convictions. He has

convictions for trafficking in drugs, receiving stolen property,

possessing drugs and lastly, carrying a concealed weapon.

Transcript at 308.

{¶48} Based on this statement, Jackson argues that “the prosecutor insinuated

Jackson’s guilt because a different jury already convicted Jackson’s co-offender based

on the same set of facts.” Brief of Defendant-Appellant at 24. We disagree. “Isolated

comments by a prosecutor are not to be taken out of context and given their most

damaging meaning.” State v. Carter,

,

(2000),

citing Donnelly v. DeChristoforo,

,

,

(1974). Here, the prosecutor made just one reference to Jordan’s conviction for

complicity to aggravated robbery. And we agree that “[t]he prosecutor did not dwell

upon, nor urge the jury to consider the implications of Floyd Jordan’s conviction with

respect to anything other than his credibility.” Brief of Plaintiff-Appellee at 12.

Therefore, based on the context, referring to Jordan’s conviction did not rise to the level

of prosecutorial misconduct.

{¶49} Accordingly, we cannot find misconduct based on the reference to

Jordan’s conviction for complicity to aggravated robbery.

5.

{¶50} Finally, Jackson contends that he was denied a fair trial because of the

cumulative effect of multiple instances of prosecutorial misconduct. Pickaway App. No. 11CA20 22

{¶51} Under the cumulative-error doctrine, “a conviction will be reversed where

the cumulative effect of errors in a trial deprives a defendant of the constitutional right to

a fair trial even though each of numerous instances of trial court error does not

individually constitute cause for reversal.” State v. Garner,

,

(1995).

{¶52} We reject Jackson’s “cumulative” argument. Here, we have found no

instances of prosecutorial misconduct. And if “a reviewing court finds no prior instances

of error, then the [cumulative-error] doctrine has no application.” State v. McKnight, 4th

Dist. No. 07CA665,

.

6.

{¶53} In conclusion, Jackson cannot demonstrate that prosecutorial misconduct

occurred. As a result, failing to object to the complained-of actions did not constitute

ineffective assistance of counsel. See Witherspoon,

, at ¶ 33.

C.

{¶54} Jackson also contends that “[t]rial counsel erred in not objecting or

requesting a limiting instruction regarding Appellant’s co-offender’s conviction based on

the same set of facts.” Brief of Appellant-Defendant at 27. According to Jackson, “the

level of prejudice was enormous because evidence of Jackson’s supposed

accomplice’s conviction suggested that Jackson must also be guilty.”

(We note that

Jackson introduced evidence from Jordan’s trial before the state did. The issue of

Jordan’s trial was first raised by Jackson’s counsel during the cross examination of

Fowler. See Transcript at 228. Specifically, Jackson’s trial counsel asked Fowler about

her testimony during Jordan’s trial. And because Jackson “opened the door” to Pickaway App. No. 11CA20 23

evidence from Jordan’s trial, any objection to evidence of Jordan’s conviction would

have been futile. See State v. Rizer, 4th Dist. No. 10CA3,

.

Accordingly, we will review whether Jackson’s trial counsel was generally ineffective in

relation to Jordan’s conviction for complicity to aggravated robbery.)

{¶55} As it relates to Jordan’s conviction for complicity to aggravated robbery,

we find that Jackson’s trial counsel engaged in a reasonable trial strategy. Jackson’s

trial counsel consistently attacked the credibility of the state’s witnesses by pointing out

inconsistencies in their testimony. And to that end, Jackson asked both Fowler and

Haddox about their testimony during Jordan’s trial. For example, Jackson’s trial counsel

asked Fowler about apparent inconsistencies in her testimony:

Q. Now you’ve testified at Spanky’s trial, correct?

A. Um-hum. Yes.

Q. And in Spanky’s trial you said you hadn’t used drugs for

a year, correct?

A. No.

Q. When Spanky’s defense attorney ask[ed] you very

specifically, “Are you still using drugs?” what was your

answer?

A. I believe I said it was last year, which would have made it

the end of November, and then I relapsed. Transcript at

228.

Jackson’s trial counsel also asked Haddox about apparent inconsistencies in her

testimony: Pickaway App. No. 11CA20 24

Q. Now, you testified before and you testified that yes, you

would describe [Hill’s] house as a drug house; is that

correct?

A. I guess.

Q. You said that at the last testimony, do you still agree with

that?

A. No. Not any more I don’t.

Q. Would you have referred to it or described it as a drug

house back in December?

A. No, not really.

Q. So when you described it in the last trial, would you have

been lying when you described it as a drug house?

A. No. I mean people that do drugs yes, they go there.

Transcript at 263-264.

{¶56} Here, Jackson’s trial counsel had several choices in relation to Jordan’s

conviction for complicity to aggravated robbery. Jackson’s trial counsel could have

sought to exclude evidence of Jordan’s conviction. But instead, Jackson’s trial counsel

introduced evidence from Jordan’s trial to attack the credibility of the state’s witnesses.

We cannot second-guess Jackson’s trial counsel, and “the strategic decision of a trial

attorney will not form the basis of a claim of ineffective assistance of counsel, even if

there may have been a better strategy available.” State v. Komora, 11th Dist. No. 96-G-

1994,

, *3 (Apr. 4, 1997), citing State v. Clayton,

,

(1980). Furthermore, because Jackson’s overall trial strategy hinged Pickaway App. No. 11CA20 25

on witness credibility, highlighting inconsistencies in the witnesses’ testimony seems

like a reasonable choice. (Indeed, Jackson relies upon inconsistent testimony from

Jordan’s trial to support both his Crim.R. 29 and manifest-weight-of-the-evidence

arguments.) Therefore, Jackson cannot overcome the presumption that his trial

counsel’s actions were part of a reasonable trial strategy. See Porter,

, citing Strickland,

,

,

.

{¶57} Finally, “[a] trial attorney may decide to eschew limiting instructions

regarding potentially prejudicial evidence for tactical reasons, because limiting

instructions might call more attention to the evidence and reinforce jurors’ prejudice.”

State v. Barnes, 8th Dist. No. 92512,

, ¶ 69. Therefore, Jackson’s

counsel “‘could reasonably have decided against [requesting a limiting instruction] * * *

for fear that [a limiting instruction] would only call the jury’s attention to [Jordan’s

conviction for complicity to aggravated robbery].’” Leonard,

, at ¶ 67,

quoting State v. Patrick, 4th Dist. No. 94CA02,

, *5 (Sept. 8, 1994); see

also State v. Hankison, 4th Dist. No. 09CA3326,

.

{¶58} Accordingly, we cannot find ineffective assistance of counsel in relation to

Jordan’s conviction for complicity to aggravated robbery.

D.

{¶59} Next, Jackson contends that “[t]rial counsel erred in asking Appellant on

direct examination about his prior conviction for carrying a concealed weapon.” Brief of

Defendant-Appellant at 28.

{¶60} We find that asking Jackson about his concealed-weapon conviction was

a reasonable strategic decision. Before trial, Jackson sought to have his concealed- Pickaway App. No. 11CA20 26

weapon conviction excluded from evidence. The trial court, however, denied Jackson’s

motion in limine. Therefore, Jackson’s trial counsel knew that the state would probably

be allowed to introduce the concealed-weapon conviction during Jackson’s cross-

examination. See Evid.R. 609; State v. Gott, 9th Dist. No. 93CA005560,

, *7 (Dec. 22, 1993).

{¶61} Rather than allow the state to introduce the evidence, Jackson’s trial

counsel asked Jackson the following questions about the concealed-weapon conviction:

Q. And you have even been convicted of having a firearm

before; is that correct?

A. Yes, sir.

Q. Now, tell us about that. Were you convicted of

brandishing a firearm?

A. No.

Q. I'm sorry, using -- aiming it at somebody?

A. No, sir. Transcript at 299.

“[T]he choice to raise damaging evidence first is an acceptable trial strategy that a

defendant can use to enhance his credibility.” State v. Smith, 9th Dist. No. 23542,

. And here, Jackson’s trial counsel chose to (1) raise the

damaging evidence first and (2) paint that evidence in the most positive light. See Gott

at *8 (“[T]aking the sting out of the prosecution’s anticipated line of questioning would

clearly constitute sound trial strategy.”). Therefore, Jackson’s trial counsel engaged in a

reasonable trial strategy, and we cannot find ineffective assistance related to the

concealed-weapon conviction. Pickaway App. No. 11CA20 27

E.

{¶62} Next, Jackson argues that he received ineffective assistance because

“[t]rial counsel failed to raise a Rule 29 motion at either the end of the State’s case-in-

chief or at the close of all the evidence.” Brief of Defendant-Appellant at 29. But here,

we cannot find ineffective assistance of counsel because any potential Crim.R. 29

motion would have failed. See State v. Knowlton,

,

, ¶

34-36 (4th Dist.).

{¶63} “We review * * * a defendant’s Crim.R. 29 motion for acquittal for

sufficiency of the evidence.” State v. Turner, 4th Dist. No. 08CA3234,

,

¶ 17, citing State v. Bridgeman,

,

(1978), syllabus.

When reviewing a case to determine if the record contains sufficient evidence to support

a criminal conviction, we must

“examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind

of the defendant’s guilt beyond a reasonable doubt. 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.” State v. Smith, 4th

Dist. No. 06CA7,

, quoting State v.

Jenks,

,

(1991),

paragraph two of the syllabus.

See also Jackson v. Virginia,

,

,

(1979). Pickaway App. No. 11CA20 28

{¶64} The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith,

, citing State v. Martin,

,

(1st Dist. 1983). Instead, the sufficiency-of-

the-evidence test “‘gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Smith,

, quoting Jackson at

319. This court will “reserve the issues of the weight given to the evidence and the

credibility of witnesses for the trier of fact.” Smith,

, citing State

v. Thomas,

,

(1982); State v. DeHass,

,

(1967), paragraph one of the syllabus.

{¶65} Based on the testimony of the state’s witnesses, any rational trier of fact

could have found the essential elements of the various charges proven beyond a

reasonable doubt. Jackson argues that the “State’s witnesses testified to numerous,

inconsistencies, making their credibility highly questionable.” Brief of Defendant-

Appellant at 29. But in the context of a Crim.R. 29 motion, “we must assume that the

witness[es] testified truthfully.” State v. McDonald, 4th Dist. No. 11CA1, 2012-Ohio-

1528, ¶ 37, citing State v. Samuel, 10th Dist. No. 11AP158,

, ¶ 25. And

here, Fowler and Haddox both testified that Jackson pointed a gun at Fowler while

taking her cell phone and money. As a result, the state produced sufficient evidence of

Jackson’s guilt, and any potential Crim.R. 29 motion would have failed.

{¶66} Accordingly, we cannot find ineffective assistance of counsel based on the

failure to raise a Crim.R. 29 motion.

F. Pickaway App. No. 11CA20 29

{¶67} Jackson also contends that his “[t]rial counsel provided ineffective

assistance during sentencing.” Brief of Defendant-Appellant at 30. Essentially, Jackson

argues that his trial counsel mistakenly agreed with the prosecutor’s recommended

sentence. But Jackson’s argument clearly fails the prejudice prong of the ineffective-

assistance-of-counsel test. See State v. McIntire, 4th Dist. No. 09CA10, 2010-Ohio-

3955, ¶ 30. The trial court did not follow the jointly recommended sentence of nine

years in prison. Instead, the trial court imposed a twelve-year prison term. Therefore,

any mistake made by Jackson’s trial counsel had no bearing on Jackson’s actual

sentence.

G.

{¶68} Finally, Jackson contends the following: “The cumulative effect of the

defense counsel’s ineffectiveness, in light of the evidence adduced against Jackson at

trial, and when combined with other errors, demonstrates that Jackson was denied due

process and a fair trial * * *.” Brief of Defendant-Appellant at 31.

{¶69} We reject Jackson’s cumulative argument. Here, “we have found no

ineffective assistance on any of [Jackson’s] enumerated instances[. Therefore,] a

cumulative argument is not supported.” State v. Thompson, 10th Dist. No. 10AP-593,

, ¶ 42.

H.

{¶70} In conclusion, we cannot find ineffective assistance of counsel under any

of Jackson’s arguments, and we overrule Jackson’s third assignment of error.

IV. Pickaway App. No. 11CA20 30

{¶71} In his second assignment of error, Jackson contends that various

instances of prosecutorial misconduct deprived him of a fair trial.

{¶72} As Jackson acknowledges, his trial counsel did not object to the alleged

instances of prosecutorial misconduct. Therefore, Jackson has forfeited all but plain

error. See State v. Keeley, 4th Dist. No. 11CA5,

.

{¶73} Under Crim.R. 52(B), we may notice plain errors or defects affecting

substantial rights. “Inherent in the rule are three limits placed on reviewing courts for

correcting plain error.” State v. Payne,

,

,

.

“First, there must be an error, i.e., a deviation from the legal

rule. * * * Second, the error must be plain. To be ‘plain’

within the meaning of Crim.R. 52(B), an error must be an

‘obvious’ defect in the trial proceedings. * * * Third, the error

must have affected ‘substantial rights.’ [The Supreme Court

of Ohio has] interpreted this aspect of the rule to mean that

the trial court’s error must have affected the outcome of the

trial.” (Omissions sic.) Id. at ¶ 16, quoting State v. Barnes,

,

(2002).

“Prosecutorial misconduct rises to plain error only if it is clear that a defendant would not

have been convicted in the absence of the improper comments.” Keeley at ¶ 28.

{¶74} We have already found that prosecutorial misconduct did not occur. And

for those same reasons, Jackson cannot show plain error based on prosecutorial

misconduct. Accordingly, we overrule Jackson’s second assignment of error. Pickaway App. No. 11CA20 31

V.

{¶75} In his fourth assignment of error, Jackson contends that his convictions

are against the manifest weight of the evidence.

{¶76} In a manifest-weight-of-the-evidence review, we “will not reverse a

conviction where there is substantial evidence upon which the [trier of fact] could

reasonably conclude that all the elements of an offense have been proven beyond a

reasonable doubt.” State v. Eskridge,

,

(1988),

paragraph two of the syllabus; accord Smith,

. We “must review

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, 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 granted.”

citing State v.

Garrow,

,

(4th Dist. 1995); Martin,

,

. But “[o]n the trial of a case, * * * the weight to be

given the evidence and the credibility of the witnesses are primarily for the trier of the

facts.” DeHass,

,

, at paragraph one of the syllabus.

{¶77} According to Jackson, “the State’s witnesses lacked credibility.” Brief of

Defendant-Appellant at 32. Jackson notes (1) that “Fowler and Haddox admitted to

being drug addicts” and (2) that “Fowler has a criminal past.”

Furthermore, Jackson

claims that “[t]he testimony elicited from the State’s witnesses revealed several

inconsistencies and changing stories.”

As a result, Jackson claims that the defense

witnesses were more credible. Pickaway App. No. 11CA20 32

{¶78} Here, we will defer to the jury’s judgment regarding witness credibility.

The

“cautious exercise of the discretionary power of a court of

appeals to find that a judgment is against the manifest

weight of the evidence requires that substantial deference be

extended to the factfinder’s determinations of credibility. The

decision whether, and to what extent, to credit the testimony

of particular witnesses is within the peculiar competence of

the factfinder, who has seen and heard the witness. * * *

Accordingly, [t]his 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 trier of facts lost its way

in arriving at its verdict.” (Alteration and omission sic.) State

v. Breidenbach, 4th Dist. No. 10CA10,

, ¶

19, quoting State v. Rhines, 2d Dist. No. 23486, 2010-Ohio-

3117, ¶ 39.

{¶79} After reviewing the record, we cannot find that the jury lost its way by

relying on the testimony of the state’s various witnesses. And finally, “[t]he jury, sitting

as the trier of fact, is free to believe all, part or none of the testimony of any witness who

appears before it.” State v. Daniels, 4th Dist. No. 11CA3423,

.

Therefore, as it relates to any inconsistent testimony, the jury was free to believe the

testimony it found most credible. Pickaway App. No. 11CA20 33

{¶80} Accordingly, we find the following: There is substantial evidence upon

which the jury could have reasonably concluded that the various offenses had been

proven beyond a reasonable doubt. As a result, we overrule Jackson’s fourth

assignment of error. Having overruled all of Jackson’s assignments of error, we affirm

the judgment of the trial court.

JUDGMENT AFFIRMED. Pickaway App. No. 11CA20 34

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds that there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and McFarland, J.: Concur in Judgment & Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.