[Cite as State v. Keeton,

.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-8 : v. : Trial Court Case No. 2018-CR-278 : MICHAEL A. KEETON : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 13th day of March, 2020.

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JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, Darke County Prosecutor’s Office, 504 South Broadway, Suite 3, Greenville, Ohio 45331 Attorney for Plaintiff-Appellee

ALEXANDER PENDL, Atty. Reg. No. 0093792, 121 West Third Street, Greenville, Ohio 45331 Attorney for Defendant-Appellant

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

TUCKER, P.J. -2-

{¶ 1} Defendant-appellant Michael A. Keeton appeals from his convictions for

aggravated robbery and misuse of a credit card. For the reasons set forth below, we

affirm.

I. Facts and Procedural Background

{¶ 2} On December 5, 2018, Johnny Wright walked to an ATM machine behind the

Darke County Courthouse and used his debit card to obtain $40. Wright then walked to

a Family Dollar store, where he purchased a cellular telephone card for $27. He then

began to walk to a homeless shelter where he was residing. As he was walking, Wright

was confronted from behind by a person who held a gun to Wright’s back and ordered

him to hand over his money. Wright began to turn toward the assailant but he was

shoved to the ground. The assailant pointed the gun at Wright’s chest and took the

remaining $13 in cash withdrawn from the ATM. The assailant also took Wright’s wallet,

which contained his driver’s license, social security card, Medicaid card, family pictures,

debit card and ATM card. The assailant then ran down the street, turned a corner, and

disappeared from view.

{¶ 3} Following an investigation, Keeton and Charles Gray were each indicted on

one count of aggravated robbery in violation of R.C. 2911.01(A)(1) and one count of

misuse of credit cards in violation of R.C. 2913.21(B)(2). The aggravated robbery counts

carried firearm specifications. Alicia Wiedmaier was also indicted, but those charges

were dismissed in exchange for her testimony against Gray and Keeton.

{¶ 4} In February 2019, the State filed a motion to consolidate Keeton’s case and

Gray’s case so that the cases would be tried together. Although Keeton objected, the -3-

trial court granted the motion. The trial commenced in June 2019.

{¶ 5} The State presented the testimony of Wright regarding the robbery. The

State also presented Alicia Wiedmaier, who testified that she was residing in Palestine,

Ohio, on December 5, 2018. On that date, Gray and Keeton came to her residence and

the three started “getting high” and “talking about selling meth.” Tr. p. 271. Wiedmaier

testified the group decided to drive around Greenville in order to execute the discussed

methamphetamine trafficking. She testified that they were traveling in a black vehicle

driven by Keeton when they observed Wright at an ATM machine. She testified that

Keeton and Gray decided to rob Wright; they pulled into a parking lot, at which time

Keeton retrieved a gun from the center console of the vehicle and handed it to Gray.

Wiedmaier testified that Gray put on a mask and exited the car. Gray then returned to

the car and indicated that he had lost sight of Wright. As the group continued to drive

around, they observed Wright exit the Family Dollar store. Gray once again exited the

vehicle. Wiedmaier then testified that she observed Gray standing above Wright and

waving the gun over him. She also testified that she heard Gray say “Don’t make me

shoot you.” Tr. p. 283.

{¶ 6} Wiedmaier testified that Gray returned to the car after taking Wright’s money

and wallet. The group then drove to an ATM at Fifth Third Bank where Gray used

Wright’s card to withdraw money. The group then drove to Chase Bank, and Gray again

used the card to withdraw money from an ATM. After this, Keeton drove to Hibbert’s

Sporting Goods (“Hibbert’s”), entered the store, and purchased a hat and gloves.

Thereafter, the group drove to Union City to Casey’s General Store (“Casey’s”), where all

three made purchases. -4-

{¶ 7} During her testimony, Wiedmaier admitted that she was a drug addict with a

substantial felony criminal record. She testified that the State had promised to dismiss

the charges filed against her in this case in exchange for her testimony against Gray and

Keeton. She also testified that she was awaiting extradition to Oklahoma regarding a

conviction for assault and battery on police officers.

{¶ 8} The State also presented the testimony of Greenville Police Detective Ryan

Benge, who responded to the scene of the robbery; he testified that he found footprints

and patterns in the snow that were consistent with Wright’s claim that he had been

followed and knocked down. Benge testified that Wright called the police department

the next day to report that he had called his bank and learned his debit card had been

used. Benge testified the card was used to withdraw $180 from the Fifth Third Bank

ATM approximately 24 minutes after Wright was assaulted. The card was then used

seven minutes later at the Chase Bank ATM where $100 was withdrawn. Finally, the

card was used at Casey’s in Union City approximately 90 minutes later.

{¶ 9} Benge traveled to Casey’s, where he was able to obtain a video depicting

activity within the store. The video admitted into evidence showed Keeton, Wiedmaier

and Gray entering the store and making purchases. The video showed Gray, with

Wiedmaier at his side, using Wright’s ATM card. The video showed Keeton placing

money on the counter to make his purchase. In the video, Keeton was wearing one

glove, a white Cincinnati Reds baseball cap and a two-toned sweatshirt. Gray was

wearing a black cap, a black coat and jeans; this clothing was consistent with Wright’s

description of the clothing his assailant wore. The video also showed that Gray had

tattoos on both sides of his neck. The video showed that all three exited the store but -5-

re-entered at varying times to purchase lottery tickets. Video from outside showed the

trio with a black vehicle. Benge testified that the car was distinctive because it did not

have a front license plate and because the rear tire on the driver’s side had a hubcap that

did not match the other three tires.

{¶ 10} Benge testified that, as he was watching the video from Casey’s, he

received a dispatch regarding suspicious activity at an address later identified as

Wiedmaier’s. The dispatch mentioned a vehicle that appeared to match the vehicle

depicted in the video. Benge responded to the address where he observed the black

vehicle seen in the video. Benge obtained a search warrant and caused the car to be

towed and its contents to be inventoried. The search of the car revealed cups from

Casey’s and lottery tickets. The search also revealed a wallet which Wright later

identified as his. A receipt from Hibbert’s for the purchase of a Cincinnati Reds baseball

cap and gloves was also found.

{¶ 11} Benge also traveled to Indiana, where he met with the owner of the subject

vehicle; the owner informed him that she had loaned the car to Keeton, and he had failed

to return the car. Benge also testified that he obtained a video from Fifth Third Bank

showing an individual wearing a black coat and a mask using Wright’s debit card to make

a withdrawal. The video, which was admitted into evidence, revealed that the individual

had tattoos on each side of his neck. The video also showed the car towed from

Wiedmaier’s residence. Benge later obtained video from Chase Bank which showed the

same vehicle and the same masked individual using Wright’s card to make a withdrawal.

{¶ 12} Benge met with Wiedmaier at her home on December 12, 2018. Based

upon his interview with her, he obtained arrest warrants for Gray and Keeton. Benge -6-

testified that when Keeton was booked into jail, a two-toned sweatshirt was taken into

evidence. Pictures of the sweatshirt matched the sweatshirt worn by Keeton as seen in

the video from Casey’s. When Gray was booked into jail, a black hat matching the hat

seen in the videos from Casey’s and both banks was taken into evidence.

{¶ 13} Finally, the State presented the testimony of Allison Gapinski, who worked

in the DNA unit of the Ohio Bureau of Criminal Investigation. Gapinski testified she

conducted a DNA analysis of Wright’s wallet and concluded that Wright, Gray and Keeton

were “all included as possible major contributors to the interior of the wallet with a statistic

of 1 in 300.” Tr. p. 393.

{¶ 14} The defense did not call any witnesses.

{¶ 15} Following the trial, the jury convicted Keeton on both charges as well as the

attendant firearm specification. The trial court sentenced Keeton to a prison term of

seven years. Keeton appeals.

II. Trial Consolidation

{¶ 16} The first assignment of error asserted by Keeton is as follows:

THE TRIAL COURT ERRED BY CONSOLIDATING APPELLANT’S TRIAL

WITH CO-DEFENDANT CHARLES GRAY’S TRIAL.

{¶ 17} Keeton claims that the trial court erred by conducting a joint trial because it

hindered him in his ability to fully cross-examine Wiedmaier, resulted in the introduction

of improper evidence and caused jury confusion.

{¶ 18} “Joinder is the rule rather than the exception, and it is favored by the law.”

State v. Howard, 1st Dist. Hamilton No. C-100240,

, citing State v. -7-

Franklin,

,

(1991). The law favors joinder because

a single trial conserves time and expense and may minimize the potentially disparate

outcomes that can result from successive trials before different juries. State v. Schiebel,

,

(1990); State v. Torres,

,

(1981). This preference for joint trials is not unrestricted. Crim.R. 14

permits a defendant to seek severance of his case from a co-defendant's case if joinder

will result in prejudice. The defendant bears the burden of establishing such prejudice.

State v. Brinkley,

,

,

, ¶ 29, citing

Torres at syllabus. We review a trial court's refusal to order separate trials for an abuse

of discretion.

{¶ 19} Keeton first contends that being tried jointly with Gray hindered his ability to

cross-examine Wiedmaier. In support, he points to a passage in the trial transcript

wherein his counsel asked Wiedmaier whether she recalled informing Benge she was

afraid of Gray. Wiedmaier denied making such a statement. Counsel then asked

Wiedmaier to read a portion of the transcript of her interview with Benge in order to refresh

her memory. After doing so, Wiedmaier again testified that she did not recall telling

Benge she feared Gray. Counsel then asked Wiedmaier whether Benge had asked her

if Gray was a violent person. Wiedmaier testified that he had not. Counsel then asked

her to review the interview transcript again.

{¶ 20} At that point, counsel for Gray objected and, at sidebar, indicated that the

portion of the transcript Wiedmaier was asked to review mentioned Gray had been

involved in a prior robbery case. Counsel for Keeton then stated that he was not directing

Wiedmaier to read the reference to the prior robbery and that even if the transcript were -8-

admitted into evidence, the portion referring to the prior offense could be redacted. The

State then noted that counsel’s use of the transcript was opening the door to the

introduction of impeachment evidence against both defendants. Keeton’s counsel then

withdrew the question.

{¶ 21} Keeton contends Gray’s objection to the use of the transcript forced him to

abandon his line of questioning and prevented him from conducting a full cross-

examination of Wiedmaier. He argues that because Wiedmaier’s testimony provided the

only evidence of his involvement in the offenses, it was crucial to expose the

inconsistencies between her trial testimony and her interview with Benge.

{¶ 22} We first note that the interview transcript is not before us and, thus, we have

no way to ascertain its content. Therefore, we cannot determine whether Wiedmaier’s

testimony actually was inconsistent with statements she made to Benge. Further, we

cannot say that Keeton’s cross-examination was limited by Gray’s objection. Indeed, it

is clear from reading the trial transcript that Gray’s counsel merely wanted to ensure

Wiedmaier did not inadvertently mention the reference to Gray’s prior criminal history.

Otherwise, Gray’s counsel did not object to the use of the transcript. It appears from

reading the entire passage cited by Keeton that his counsel was, instead, prompted to

discontinue his line of questioning in order to avoid having the State seek to use the

transcript for purposes of impeachment. Thus, we cannot conclude that Keeton has

demonstrated prejudice.

{¶ 23} Keeton next objects to statements made by Wiedmaier during her

testimony. Specifically, Wiedmaier testified that just before the robbery, Gray stated that

he did not want to go back to prison. Shortly thereafter, she testified Gray got back into -9-

the car after accosting Wright and stated, “I thought the mother f * * *er was going to make

me shoot him. He wouldn’t give me his wallet.” Tr. p. 284. Keeton contends these

statements would not have been admissible in a trial against him alone. He further

contends that these statements, which acted to show that “Gray [was] nefarious, [and had

a] criminal history and [a] disregard for human life[,]” caused “the jury to attribute the same

criminality and sociopathy to him.”

{¶ 24} The record shows that counsel for Gray objected to the statement about a

return to prison. Thereafter, the trial court gave the jury a limiting instruction and ordered

the jury to disregard the statement. We presume that juries follow the instructions

provided to them. State v. Jones,

,

(2000). No

objection was made to the second statement. Thus, we are limited to a plain error

review. State v. Santiago, 10th Dist. Franklin No. 02AP-1094,

. To

make a showing of plain error, an appellant “must establish that an error occurred, that

the error was obvious, and that the error affected his * * * substantial rights.” (Citation

omitted.) State v. Reddix, 8th Dist. Cuyahoga No. 107672,

, ¶ 7. Notice

of plain error “is to be taken with the utmost caution, [only in] exceptional circumstances

and only to prevent a manifest miscarriage of justice.” State v. Long,

,

(1978), paragraph three of the syllabus.

{¶ 25} We cannot say that the admission of these statements changed the

outcome of this case. The jury was specifically instructed to “consider the evidence

applicable as to each Defendant as though he were being separately tried.” Court’s Exh.

1. The instructions further stated that the jurors were not to let their findings regarding

either defendant influence their findings as to the other. Again, we presume that the jurors -10-

followed the instructions given to them.

{¶ 26} Having reviewed the record, we conclude the trial court properly exercised

its discretion in granting the State’s motion to consolidate the trials of Keeton and Gray

and overruling Keeton’s objection thereto. Therefore, the first assignment of error is

overruled.

III. Claimed Prosecutorial Misconduct

{¶ 27} Keeton’s second assignment of error states as follows:

APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE TO

IMPROPER COMMENTS OF THE PROSECUTING ATTORNEY.

{¶ 28} Keeton alleges prosecutorial misconduct occurred during the voir dire,

opening statement, closing argument and rebuttal closing argument. We will address

each of these arguments in turn.

{¶ 29} “The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether they prejudicially affected any substantial right of the

accused.” State v. Hanna,

,

,

, ¶ 61,

quoting State v. Jones,

,

(2000). “However, the

touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ”

citing Smith v. Phillips,

,

,

(1982). This

court has recognized prosecutors are given wide latitude in their closing arguments to

draw inferences from the testimony heard and the evidence presented, but, of course,

this latitude is not without limit. State v. Lillicrap, 2d Dist. Montgomery No. 23958, 2011-

Ohio-3505, ¶ 6. “In reviewing allegations of prosecutorial misconduct, we review the -11-

alleged wrongful conduct in the context of the entire trial,” and if “it is clear beyond a

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

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

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

.

{¶ 30} Defense counsel did not raise an objection to any of the claimed improper

statements made by the prosecutor during voir dire, opening statement or closing

argument. Thus, we are limited to a review for plain error.

{¶ 31} Keeton first claims that, during voir dire, the prosecutor improperly

expressed a personal opinion about the strength of the State’s evidence by stating, “I

believe, of course, I have sufficient evidence.” Tr. p. 69. A reading of the entire passage

indicates that immediately prior to the cited statement, the prosecutor discussed the

State’s burden of proof. And, immediately after the statement, the prosecutor stated that

regardless of his belief regarding the sufficiency of the evidence, the jurors were the triers

of fact and it was their job to decide whether the State had met its burden. We conclude

that Keeton has not demonstrated misconduct with regard to this statement.

{¶ 32} Next, Keeton objects to a statement made by the prosecutor during opening

statements. Specifically, the prosecutor stated, “I can tell you that the evidence in this

case is pretty overwhelming, that these people robbed this guy.” In reading the entirety

of this passage, we note that prior to the statement, the prosecutor had been discussing

the evidence the State intended to submit during the trial. The prosecutor ended the

passage by correctly stating that it had the burden of proof to convince the jurors of

Keeton’s guilt beyond a reasonable doubt. Again, we find no misconduct. -12-

{¶ 33} Keeton also contends that the prosecutor acted improperly during closing

argument by stating “* * * I believe that you have more than enough evidence, more than

enough proof beyond a reasonable doubt that these two guys robbed this Johnny Wright,

used the debit card and stole his money.” As with the statements above, we conclude the

prosecutor was merely commenting that, based upon the evidence presented, the State

had met its burden of proof. This does not constitute misconduct.

{¶ 34} Finally, Keeton complains that during rebuttal closing argument, the

prosecutor stated, “I get the last word to talk about the garbage and mischaracterization

that you just heard from the defense attorneys.” Tr. p. 527. The prosecutor also

referred to the closing argument made by both defense counsel as “absurd”.

{¶ 35} We have stated that it is improper for a “prosecutor [to] continuously

characterize[e] the defense theory as one of deception,” and we have also stated that

“[w]hile a prosecutor may urge the jury to give little or no weight to the defense's case, *

* * attempts by the prosecutor to persuade the jury that the defense is trying to mislead

them [are] improper.” (Citations omitted.) State v. Ward, 2d Dist. Montgomery No. 18211,

, *6 (Mar. 2, 2001). The prosecutor’s statements suggesting that

defense counsel “mischaracterized” the evidence and that defense counsel’s arguments

were “absurd” were within the wide latitude a prosecutor is afforded during closing

argument. On the other hand, calling the defense arguments “garbage” arguably

constituted an improper attempt to convince the jury that defense counsel was attempting

to mislead. However, we cannot conclude that the prosecutor’s one-time use of the word

“garbage” amounts to plain error.

{¶ 36} We conclude that Keeton has failed to demonstrate prosecutorial -13-

misconduct. Accordingly, the second assignment of error is overruled.

IV. Conclusion

{¶ 37} Both assignments of error being overruled, the judgment of the trial court is

affirmed.

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HALL, J. and WELBAUM, J., concur.

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James D. Bennett Alexander Pendl Hon. Jonathan P. Hein