[Cite as State v. Lauderdale,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 26454 and 26456 : v. : Trial Court Case Nos. 2014-CR-1612 : and 2012-CR-0812 MICHAEL L. LAUDERDALE : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

...........

OPINION

Rendered on the 10th day of June, 2016.

...........

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 131 North Ludlow Street, Suite 1210, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Michael L. Lauderdale, appeals from his conviction in

the Montgomery County Court of Common Pleas after a jury found him guilty of

aggravated robbery with an attendant firearm specification in Case No. 2014-CR-1612.

Lauderdale contends his conviction was not supported by sufficient evidence and was

otherwise against the manifest weight of the evidence. Lauderdale also argues that the

State engaged in prosecutorial misconduct during its closing argument.

{¶ 2} In addition to that case, Lauderdale also appeals from the decision of the

Montgomery County Court of Common Pleas revoking his community control sanctions

in Case No. 2012-CR-0812. Lauderdale claims his community control sanctions were

improperly revoked because the revocation was based on the aggravated robbery

conviction in Case No. 2014-CR-1612, which as noted above, Lauderdale claims was not

supported by sufficient evidence and was otherwise against the manifest weight of the

evidence.

{¶ 3} Because Lauderdale’s two appeals are interrelated, they have been

consolidated and reviewed together for purposes of issuing this opinion. For the reasons

outlined below, Lauderdale’s conviction in Case No. 2014-CR-1612 and the revocation of

his community control sanctions in Case No. 2012-CR-0812 will be affirmed.

Facts and Course of Proceedings

{¶ 4} On June 3, 2014, Lauderdale was indicted for one count of aggravated

robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a three-year

firearm specification. The charge stemmed from allegations that on May 2, 2014, -3-

Lauderdale robbed the victim, Joseph Dillon, at gunpoint while Dillon was walking down

an alley between East Norman and Fairview Avenues located in the city of Dayton,

Montgomery County, Ohio. Lauderdale pled not guilty to the charge and the matter

proceeded to a three-day jury trial that concluded on October 8, 2014.

{¶ 5} At trial, Dillon testified that on the afternoon of the day in question, he was

walking down the aforementioned alley to purchase cigarettes at a nearby store when he

saw three males walking toward him. Being a resident of the area, Dillon testified that

he did not recognize any of the men, but noticed that one of them was lingering behind

the other two. Dillon then testified that as the three men made their way toward him, he

heard a gun “rack” and saw the third man who had been lingering behind jump over to

him. According to Dillon, the man then grabbed his right arm, spun him around, and

ordered him to the ground. As this occurred, Dillon testified that he saw part of a black

pistol. Dillon further testified that as he was lying face down on the ground he felt the

pistol pressed against the back of his head and the man’s knee pressed against his back.

{¶ 6} Continuing, Dillon testified that the man searched all of his pockets and took

$35 in loose cash, his cell phone, and his wallet. The cash was in denominations of a

$20, $10, and $5 bill. Dillon testified that he had folded the $10 bill into quarters (folded

in half and then folded in half again), whereas the $20 and $5 bills were simply folded in

half. Dillon also testified that after emptying his pockets, the man grabbed his glasses

from off his face and told him to stay on the ground. Thereafter, Dillon heard the three

men walk away. Once the men were gone, Dillon testified that he got up and ran to his

house to look for his cell phone in order to call 9-1-1. However, when he arrived at his

house, Dillon realized that his cell phone had been stolen during the robbery. Dillon then -4-

went to his neighbor's house and called 9-1-1 from there.

{¶ 7} The recording of Dillon’s 9-1-1 call was admitted into evidence. During the

call, Dillon told the operator that he was robbed at gunpoint by “one big black guy and two

skinnier black guys” and explained that the bigger man was the one who actually

performed the robbery. He described the big man as wearing “white, blue jeans,” but he

did not know what the other two men were wearing. Dillon also told the operator that the

men had left on foot toward the Dollar General on East Fairview Avenue.

{¶ 8} A few minutes after reporting the incident, Sergeant Mark Spiers of the

Dayton Police Department arrived at Dillon’s house and made contact with Dillon. Dillon

then told Spiers what had happened and gave him a description of the individual who had

robbed him. At trial, Dillon testified that he got a good look at the man who robbed him

and described him as a dark-skinned black male in his mid-twenties or thirties who

weighed 220 to 225 pounds and was roughly 5’10” to 5’11” tall. Dillon testified that the

man was wearing silver, clear-lensed glasses, blue jeans, and a sweater that was navy

blue with a design that looked like hundreds of white stars, snowflakes, flowers, or

splotches. Dillon also testified that the man was wearing a watch, belt, and no hat.

{¶ 9} Spiers testified that Dillon described the suspect as being 5’10” or 5’11” with

a dark complexion, and wearing silver glasses, blue jeans, and a blue t-shirt with dots or

stars in the middle of the chest. The incident detail history log admitted into evidence

indicated that Spiers broadcast a similar description noting that the suspect was wearing

blue jeans, a blue shirt or jacket, was 5’10”, stocky, and in his mid-twenties. Spiers

testified that his dispatch was based on the description provided by Dillon.

{¶ 10} After Spiers obtained Dillon’s description of the suspect, he put Dillon in his -5-

cruiser and drove around the area to see if they could locate the suspect. Approximately

15 minutes into their drive, Spiers testified that they came upon two individuals walking

past a barbershop located at 3138 North Main Street, which is near Knecht Drive and

approximately 12 blocks from where the robbery took place. According to Spiers, Dillon

indicated that one of the individuals walking past the barbershop was the man who had

robbed him. Spiers testified that the individual Dillon pointed out had a dark complexion,

was wearing silver glasses, and had on a light blue shirt. The individual was later

identified as Lauderdale.

{¶ 11} Spiers testified that Lauderdale and his companion looked nervous as he

drove by them in his cruiser. Specifically, Spiers saw the two men step back toward the

door of the barbershop and go inside the building. Thereafter, Spiers immediately pulled

into the parking lot and asked Dillon if Lauderdale was the individual who had robbed him.

To this, Spiers testified that Dillon was adamant that Lauderdale was the man who had

robbed him, but that Dillon did not recognize the other individual who was with him.

{¶ 12} Both Dillon and Spiers testified that Dillon did not have his glasses on at the

time he identified Lauderdale as his assailant. However, Dillon testified that without his

glasses he was only prevented from seeing things up close. Dillon testified that, while

blurry, he could still see from 15 to 20 feet away without his glasses, and that he was able

to see distinct facial features from a distance. Dillon specifically testified that he

recognized Lauderdale’s facial features when he identified him outside the barbershop.

{¶ 13} Spiers testified that once Dillon identified Lauderdale, Dillon began to panic

in fear of his safety. In response, Spiers drove to a nearby side street and told Dillon to

wait in the cruiser while he went to the barbershop to locate Lauderdale and the other -6-

individual. As he walked towards the barbershop, Spiers testified that he observed

Lauderdale and the other individual walking down Knecht Drive. Spiers then

immediately yelled for the individuals to stop, but they looked back and continued walking.

When Spiers ordered them to stop again, Lauderdale stopped while the other individual

took off running.

{¶ 14} During his initial encounter with Lauderdale, Spiers observed a white cell

phone in Lauderdale’s right hand. Thereafter, Spiers testified that he grabbed

Lauderdale, ordered him to the ground, and radioed other police crews about the fleeing

subject. In doing so, Spiers testified that his attention was focused on the fleeing suspect

for a moment, and that when he returned his attention to Lauderdale, Lauderdale no

longer had the white cell phone in his hand. Rather, Spiers observed the white cell

phone located two feet from where Lauderdale was positioned on the ground. Sergeant

Paul Sanders, who arrived at the scene later, also testified that he saw the cell phone

lying on the ground near Lauderdale. Spiers testified that he initially thought the phone

was Lauderdale’s, but later discovered that it was actually Dillon’s cell phone that had

been stolen during the robbery. Lauderdale does not dispute that the cell phone located

near his person belonged to Dillon.

{¶ 15} On cross-examination, Spiers identified the clothing that Lauderdale was

wearing at the time he was booked into jail. The clothing included a blue t-shirt with a

black logo on the front, a large cross necklace that had stars on the end of the cross, blue

jeans, and a black hat. Image stills from a security video taken at a local convenience

store next to the barbershop were admitted into evidence and depict Lauderdale wearing

the aforementioned items of clothing and accessories while purchasing a bottle of -7-

Gatorade just prior to his arrest. The stills show Lauderdale approaching the store’s

counter to purchase the Gatorade at 2:46 p.m. The incident history detail of Dillon’s 9-

1-1 call indicates that Dillon reported the robbery at 2:25 p.m. and told the operator that

the robbery had happened just five minutes prior.

{¶ 16} Spiers also testified that Lauderdale had $32.78 in cash on his person when

he was arrested. The denominations were a $20 bill, a $10 bill, two $1 bills, and change.

Spiers identified a photograph of the money recovered from Lauderdale, and noted that

the $10 bill was folded in the manner described by Dillon. However, no gun was ever

found on Lauderdale.

{¶ 17} Lauderdale’s mother, aunt, and cousin all testified on Lauderdale’s behalf

and each of them confirmed that they have never seen Lauderdale with a gun. They

also testified that Lauderdale spent the night at his aunt’s house on 412 Knecht Drive the

night before the robbery. His aunt testified that on the day of the robbery, Lauderdale

was at the house when she left at 7:15 a.m., but that he was no longer there when she

returned at noon. Lauderdale’s cousin testified that Lauderdale was still at 412 Knecht

Drive when he woke up, and although he could not remember the time, he claims he was

with Lauderdale until Lauderdale left to get a haircut approximately five or ten minutes

prior to Lauderdale’s arrest. His cousin also confirmed that Lauderdale was wearing a

blue shirt, blue jeans, a black hat, a cross necklace, and silver glasses. In addition,

Lauderdale’s mother testified that her son is 20 years old, 250 to 255 pounds, and 6’3” or

6’4” tall. She also testified that she has never seen her son wear a blue sweater with

hundreds of white stars or flowers on it.

{¶ 18} After the presentation of evidence, the jury deliberated and found -8-

Lauderdale guilty as charged. The trial court then sentenced Lauderdale to three years

in prison for aggravated robbery and an additional three years for the firearm specification

to be served consecutively for a total prison term of six years. As a result of his

conviction, Lauderdale’s community control sanctions were revoked in Case No. 2012-

CR-0812.

{¶ 19} Lauderdale now appeals from his conviction, as well as from the revocation

of his community control sanctions, raising three assignments of error for review.

First Assignment of Error

{¶ 20} Lauderdale’s First Assignment of Error is as follows:

THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, AND THE EVIDENCE PRESENTED WAS INSUFFICIENT, AS

A MATTER OF LAW, TO PROVE THE APPELLANT’S GUILT BEYOND A

REASONABLE DOUBT.

{¶ 21} Under his First Assignment of Error, Lauderdale disputes the legal

sufficiency and manifest weight of the evidence to sustain his aggravated-robbery

conviction with the attendant firearm specification.

{¶ 22} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to -9-

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis,

,

(1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.)

{¶ 23} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction is against the manifest weight of the evidence, the appellate court

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

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier

of fact “clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.”

, quoting State

v. Martin,

,

(1st Dist. 1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62,

, citing Wilson at ¶ 14.

{¶ 24} “The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve.” State v. Hammad, 2d Dist. Montgomery No.

26057,

, citing State v. DeHass,

,

(1967). Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL -10-

476684, *4 (Aug. 22, 1997). “This court will not substitute its judgment for that of the trier

of facts on the issue of witness credibility unless it is patently apparent that the factfinder

lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign No. 97 CA 03,

, *4 (Oct. 24, 1997).

{¶ 25} As noted above, Lauderdale was found guilty of aggravated robbery in

violation of R.C. 2911.01(A)(1) with an attendant three-year firearm specification. R.C.

2911.01(A)(1) provides that: “No person in attempting or committing a theft offense * * *

shall * * * [h]ave a deadly weapon on or about the offender’s person or under the

offender’s control and either display the weapon, brandish it, indicate that the offender

possesses it, or use it[.]” A “theft offense” is, among other things, a violation of R.C.

2911.01 (aggravated robbery) and R.C. 2911.02 (robbery). R.C. 2913.01(K)(1). A

“deadly weapon” is defined as “any instrument, device, or thing capable of inflicting death,

and designed or specially adapted for use as a weapon, or possessed, carried, or used

as a weapon.” R.C. 2923.11(A). “For purposes of establishing the crime of aggravated

robbery, a jury is entitled to draw all reasonable inferences from the evidence presented

that the robbery was committed with the use of a gun, and it is not necessary that the

prosecution prove that the gun was capable of firing a projectile.” State v. Vondenberg,

,

(1980), syllabus.

{¶ 26} With respect to the firearm specification, a mandatory three year prison term

is permitted where the indictment specifies and the jury finds “that the offender had a

firearm on or about the offender’s person or under the offender’s control while committing

the offense and displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offenses.” R.C. 2941.145(A). -11-

“ ‘Firearm’ means any deadly weapon capable of expelling or propelling one or more

projectiles by the action of an explosive or combustible propellant. ‘Firearm’ includes an

unloaded firearm, and any firearm that is inoperable but that can readily be rendered

operable.” R.C. 2923.11(B)(1) “When determining whether a firearm is capable of

expelling or propelling one or more projectiles by the action of an explosive or combustible

propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited

to, the representations and actions of the individual exercising control over the firearm.”

R.C. 2923.11(B)(2).

{¶ 27} “Both a firearm’s existence and its operability may be inferred from the

surrounding facts and circumstances. It is not necessary to admit the firearm used

during the crime in evidence in order to establish a firearm specification.” State v. Vann,

2d Dist. Montgomery No. 22818,

, ¶ 27, citing State v. Murphy,

,

(1990). (Other citation omitted.) “A victim’s belief that the

weapon is a gun, together with the intent on the part of the accused to create and exploit

that belief for his own criminal purposes, is sufficient to prove a firearm specification.”

citing State v. Greathouse, 2d Dist. Montgomery No. 21536,

.

{¶ 28} In this case, the State presented evidence demonstrating that during the

afternoon of May 2, 2014, Dillon was robbed at gunpoint as he was walking down an alley

between East Norman and East Fairview Avenues. Specifically, Dillon testified that

during the robbery he heard a gun “rack” and saw part of a black pistol as one of three

men grabbed his right arm, spun him around, and told him to get on the ground. Dillon

also testified that he felt the pistol against the back of his head as the man stole his cell

phone, wallet, $35 cash, and the glasses off his face. Dillon later identified Lauderdale -12-

as the man who had robbed him.

{¶ 29} The foregoing testimony clearly satisfies the elements of aggravated

robbery and the attendant firearm specification. Nevertheless, Lauderdale, maintains

that his conviction is against the manifest weight of the evidence, as he claims the weight

of the evidence fails to establish that he was the individual who robbed Dillon at gunpoint.

{¶ 30} In support of this claim, Lauderdale relies on Dillon’s description of the

robber, claiming the description was inconsistent with Lauderdale’s actual appearance.

Specifically, Lauderdale points to the fact that during Dillon’s 9-1-1 call, Dillon told the

operator that the assailant was wearing “white” jeans when his jeans were actually blue.

However, the recording of the 9-1-1 call admitted into evidence establishes that Dillon

advised the operator that the assailant was wearing “white,” and then Dillon paused for a

moment and said “blue jeans.” The manner of Dillon’s statement on the recording does

not indicate that he was describing the jeans as being white; rather, the pause in his

statement indicates that he was referring to another article of clothing. When confronted

with the discrepancy regarding the color of the jeans at trial Dillon testified that he thought

he had said the assailant was wearing “blue jeans and blue and white on his shirt.” Trial

Trans. (Oct. 6, 2014), p. 54-55. Dillon also explained that he “was shook up at the time

and * * * not sure that he said it like that or not.”

Regardless, when Sgt. Spiers met

with Dillon just a few minutes after the 9-1-1 call, Dillon advised Spiers that the assailant

had on blue jeans and Dillon consistently gave that description throughout the rest of the

investigation and at trial.

{¶ 31} Lauderdale also points to the fact that Dillon testified his assailant was

wearing a navy blue shirt or sweater that had a design on it that looked like hundreds of -13-

white splotches, stars, snowflakes, or flowers on the front, as well as a watch on his arm,

a belt, and no hat. As previously discussed, at the time of his arrest, Lauderdale was

wearing a blue t-shirt with a black logo and a large cross necklace. The evidence also

demonstrates that Lauderdale was wearing, or at least had possession of, a black hat.

Lauderdale further notes that Dillon described his assailant as being roughly 5’10” or 5’11”

tall, when Lauderdale is actually 6’3” or 6’4” tall.

{¶ 32} We agree that there are some inconsistencies with regards to Dillon’s

description of his assailant’s clothing and height. However, the jury could have

reasonably resolved these inconsistencies through other testimony and evidence in the

record. For example, Dillon correctly described Lauderdale’s skin tone, silver-framed

glasses, and big build. Dillon also testified that he recognized Lauderdale’s distinctive

facial features when he saw him standing outside the barbershop. The evidence

indicates that throughout the investigation, Dillon was adamant that Lauderdale was his

assailant. Dillon also testified that he got a good look at Lauderdale as he was walking

toward him in the alley, and that he saw Lauderdale as he grabbed him from only a short

distance away. Dillon further testified that his glasses were on at the time he observed

Lauderdale in the alley, and that his glasses were not taken from him until after

Lauderdale pushed him to the ground.

{¶ 33} While Lauderdale implies that Dillon’s lack of glasses caused him to

misidentify Lauderdale as the assailant when he saw him outside the barbershop, Dillon

testified that his vision impairment is one in which he cannot see up close, but that he is

able to see distinctive facial features from a distance. Also, with respect to Lauderdale’s

clothing, it is conceivable that Lauderdale could have changed some of his clothing -14-

immediately after committing the crime, as Dillon specifically testified that Lauderdale was

wearing a different shirt when he identified him at the barbershop, but that he was wearing

the same pair of jeans.

{¶ 34} We also do not find that the difference between the height Dillon estimated

and Lauderdale’s actual height renders Lauderdale’s conviction against the manifest

weight of the evidence. Dillon, who is 5’10”, testified that he thought he was close to eye

level with the assailant, but noted that he “had to look up a little” to look directly into the

assailant’s eyes. Trial Trans. (Oct. 6, 2014), p. 58. Despite Dillon being adamant that

his assailant was not 6’3” or 6’4”, and Lauderdale in fact being that height, Dillon testified

that even with the perceived height difference, he is sure that Lauderdale is the man who

robbed him at gunpoint.

{¶ 35} In addition, there is a plethora of other evidence that the jury could have

relied upon in finding Lauderdale guilty. For example, the evidence indicates that

Lauderdale had Dillon’s cell phone in his possession at the time of his arrest. Sgt. Spiers

testified that he saw a white cell phone in Lauderdale’s hand as he approached him, and

a moment later, he observed the same cell phone on the ground two feet away from

Lauderdale. There is no dispute that the white cell phone Spiers observed on the ground

was Dillon’s.

{¶ 36} In refuting Spiers’s testimony that he had possession of Dillon’s cell phone,

Lauderdale relies on the fact that his DNA was not discovered on the phone. However,

the fact that Lauderdale’s DNA was not found on the phone does not necessarily mean

that he did not have it in his possession. The forensic scientist who tested the DNA

swabs taken from the cell phone appeared at trial and testified that it is possible for -15-

someone to touch a cell phone and not transfer their DNA on it. This is demonstrated by

the fact that Dillon’s DNA was also not discovered on the phone, and as the owner, Dillon

would have obviously touched the phone.

{¶ 37} The evidence also demonstrates that Lauderdale had a total of $32.78 in

his possession at the time of his arrest, which was after he purchased the bottle of

Gatorade at the convenience store next to the barbershop. The total amount of money

stolen from Dillon was $35 in denominations of a $20, $10 and $5 bill, and Lauderdale

had possession of a $20 bill and a $10 bill that was folded in the same manner that Dillon

had folded the $10 bill that was stolen from him. Although no specific evidence was

presented as to the cost of the Gatorade purchased by Lauderdale, it would be

reasonable for the jury to conclude that the other $2.78 on his person could have been

change from breaking the $5 bill at the convenience store.

{¶ 38} Sgt. Spiers also testified that Lauderdale and his companion looked nervous

as his cruiser drove by them just prior to them entering the barbershop. While the owner

of the barbershop testified that he did not notice anything unusual about Lauderdale or

his companion (other than the police following them), the owner testified that neither

Lauderdale nor his companion had ever been to the shop for a haircut before and that

they left the shop as soon as Spiers’s cruiser left the parking lot.

{¶ 39} We also note that the jury was free to believe or disbelieve the testimony of

the defense witnesses, who were relatives of Lauderdale and who generally testified that

Lauderdale was at his aunt’s house at the time of the offense. The credibility of these

witnesses was for the jury to determine, and we will not disturb that determination on

appeal. Furthermore, the fact that the jury chose to believe Dillon’s testimony regarding -16-

his recognition of Lauderdale as his assailant and Spiers’s testimony regarding

Lauderdale’s possession of Dillon’s cell phone does not render Lauderdale’s conviction

against the manifest weight of the evidence.

{¶ 40} Based on the evidence before this court, we find the jury did not create a

manifest miscarriage of justice in finding Lauderdale guilty of aggravated robbery and the

attendant firearm specification. Lauderdale’s conviction was supported by sufficient

evidence and was not against the manifest weight of the evidence. Accordingly,

Lauderdale’s First Assignment of Error is overruled.

Second Assignment of Error

{¶ 41} Lauderdale’s Second Assignment of Error is as follows:

THE PROSECUTING ATTORNEY COMMITTED PROSECUTORIAL

MISCONDUCT THAT DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR

TRIAL.

{¶ 42} Under his Second Assignment of Error, Lauderdale claims the State

engaged in prosecutorial misconduct when the prosecutor made the following statement

about the height difference during its closing argument:

And also it makes sense that when [Dillon] was getting robbed, when

someone is walking up to you, they’re not walking at the peak of their height.

Most people slouch; they’re a little bit lower. And especially when they’re

about to attack somebody. You don’t stand up straight. I’m going to

attack you and throw you to the ground. You come in, you use your legs

as leverage. That’s what football players do, right, when they’re going to -17-

tackle somebody. They’re not standing up straight. They’re getting lower

down so they can take you to the ground. That’s what happened to Joseph

Dillon. That’s what the defendant did to him in this case.

Trial Trans. (Oct. 8, 2014), p. 308-309.

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

closing arguments.” (Citations omitted.) State v. Whitfield, 2d Dist. Montgomery No.

22432,

. “A prosecutor may freely comment in closing argument on

what the evidence has shown and what reasonable inferences the prosecutor believes

may be drawn therefrom.” (Citation omitted.)

We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.

Greene No. 2007-CA-51,

, citing Darden v. Wainwright,

,

,

(1986).

{¶ 44} Our review of prosecutorial misconduct claims focuses on whether the

prosecutor’s remarks were improper and, if so, whether those comments prejudicially

affected the substantial rights of the defendant. (Citation omitted.) State v. Jones,

,

(2000). “The touchstone of the analysis ‘is the

fairness of the trial, not the culpability of the prosecutor.’ ”

quoting Smith v. Phillips,

,

,

(1982). The question is whether the

prosecutor’s misconduct so infected the accused’s trial with unfairness that the accused’s

convictions came in violation of the right to due process. Donnelly v. DeChristoforo,

,

,

(1974). However, where it is clear beyond

a reasonable doubt that the jury would have found the defendant guilty, even absent the

alleged misconduct, the defendant has not been prejudiced, and his conviction will not be -18-

reversed. (Citation omitted.) State v. Underwood, 2d Dist. Montgomery No. 24186,

.

{¶ 45} Lauderdale failed to object to the statement at issue, so we are limited to a

plain-error review. Plain error is not present unless, but for the error complained of, the

outcome of the trial would have been different. State v. Long,

,

(1978), paragraph two of the syllabus. A finding of plain error should be

made with utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice.

at paragraph three of the syllabus.

{¶ 46} Having reviewed the record, we find no plain error in the prosecutor’s

remarks about Lauderdale possibly not standing up straight and getting lower to the

ground. The remarks are reasonable inferences based on Dillon’s testimony that

Lauderdale appeared to be 5’10” or 5’11” tall and slightly above his own eye level when

Lauderdale grabbed him. We further do not find that the outcome of the trial would have

been any different had the prosecutor not made the remarks. Again, even when

considering the inconsistencies in Dillon’s description of his assailant to that of

Lauderdale himself, there was an abundance of other evidence linking Lauderdale to the

crime. Accordingly, Lauderdale’s Second Assignment of Error is overruled.

Third Assignment of Error

{¶ 47} Lauderdale’s Third Assignment of Error is as follows:

REVOCATION OF APPELLANT’S COMMUNITY CONTROL WAS BASED

ENTIRELY ON A CONVICTION THAT MUST BE REVERSED ON

APPEAL. -19-

{¶ 48} Under his Third Assignment of Error, Lauderdale claims the revocation of

his community control sanctions in Case No. 2012-CR-0812 was improper because the

revocation was based on the previously discussed aggravated robbery conviction in Case

No. 2014-CR-1612, a conviction that Lauderdale claims was not supported by sufficient

evidence and was otherwise against the manifest weight of the evidence. However,

since we have concluded under his First Assignment of Error that his aggravated robbery

conviction was supported by sufficient evidence and not against the manifest weight of

the evidence, we find Lauderdale’s community control sanctions were properly revoked.

Therefore, Lauderdale’s Third Assignment of Error is overruled.

Conclusion

{¶ 49} Having overruled all three assignments of error raised by Lauderdale, we

hereby affirm his conviction for aggravated robbery and the firearm specification in Case

No. 2014-CR-1612 and the revocation of his community control sanctions in Case No.

2012-CR-0812.

.............

DONOVAN, P.J. and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck, Jr. Meagan D. Woodall Jeffrey T. Gramza Hon. James A. Brogan Hon. Dennis J. Langer