[Cite as State v. Ward,

.]

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

STATE OF OHIO : : Appellee : C.A. No. 29493 : v. : Trial Court Case No. 2021 CR 01106 : ANTONION K. WARD : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on February 3, 2023

...........

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

CHARLES W. SLICER, III, Attorney for Appellant

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

WELBAUM, P.J.

{¶ 1} Appellant, Antonion K. Ward, appeals from his convictions in the Montgomery

County Court of Common Pleas after a jury found him guilty of three counts of aggravated

vehicular homicide. In support of his appeal, Ward claims that the trial court erred by

failing to suppress un-Mirandized statements that he made to police officers during two -2-

separate interviews. Ward also claims that his convictions were against the manifest

weight of the evidence and that his trial counsel provided ineffective assistance during his

trial. Ward further claims that he was denied a fair trial due to the State’s engaging in

prosecutorial misconduct during closing argument. For the reasons outlined below, we

find that all of Ward’s claims lack merit, and we will affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On May 11, 2021, a Montgomery County grand jury returned an indictment

charging Ward with three counts of aggravated vehicular homicide in violation of R.C.

2903.06(A)(2)(a), felonies of the second degree. The charges arose from a two-vehicle

collision that occurred on July 15, 2020, at the intersection of Olive and Little Richmond

Roads in the city of Trotwood. The indictment alleged that Ward had been operating one

of the vehicles involved in the collision and that, in doing so, he recklessly caused the

deaths of his passengers, Michael Stephens and Elgin Wilson IV, and of the driver of the

other vehicle in the collision, Leah Smith. Ward pled not guilty to the indicted charges

and thereafter filed a motion to suppress. In the motion, Ward sought to suppress

statements that he had made to investigating officers during two separate interviews on

grounds that the officers did not advise him of his Miranda rights before questioning him.

{¶ 3} On March 7, 2022, the trial court held a hearing on Ward’s motion to

suppress. At the hearing, the State presented testimony from the officers who had

questioned Ward. The first officer, Trooper Joshua Jones of the State Highway Patrol,

testified that he had interviewed Ward on the night of the accident while Ward was at the -3-

hospital receiving medical treatment for his injuries. The second officer, Officer Sherri

Jackson of the Trotwood Police Department, testified that she and another officer,

Trooper Ambers, had interviewed Ward at his residence two weeks after the accident.

Both Tpr. Jones and Ofc. Jackson testified that, at the time of their respective interviews,

Ward had not been a criminal suspect, had not been placed under arrest, and had not

been advised of his Miranda rights before questioning. The officers’ testimony also

established that the officers had in no way restrained Ward’s freedom of movement or his

ability to terminate the interviews.

{¶ 4} After considering the officers’ testimony and the exhibits, which included a

written statement of the questions and answers given during Tpr. Jones’ interview and an

audio recording of Ofc. Jackson’s interview, the trial court determined that neither

interview had qualified as a custodial interrogation that required Miranda warnings.

Accordingly, the trial court overruled Ward’s motion to suppress the statements that he

had made to each of the officers.

{¶ 5} Following the trial court’s ruling on Ward’s motion to suppress, the matter

proceeded to a three-day jury trial in May 2022. During trial, the State presented

testimony from multiple witnesses who had observed the traffic accident. The State also

presented testimony from the fire and law enforcement officers who had responded to the

scene of the accident and investigated the matter. In addition, the State presented

testimony from the coroner who had performed autopsies on the three victims and from

an expert traffic accident reconstructionist. Ward also testified in his defense.

{¶ 6} The trial testimony established that on the evening of July 15, 2020, Ward, -4-

who was then 19 years old, drove his mother’s Chevy Cruz to pick up his 18-year-old

stepbrother, Michael Stephens, and his 18-year-old friend, Elgin Wilson, from a pool

party. Ward’s plan was to drive Stephens and Wilson to an after-party located at an

Airbnb rental house. While traveling to the after-party, Ward stopped his vehicle at a

traffic light on Olive Road near the Trotwood police station. An SUV driven by Ward’s

17-year-old friend, E’Mariha Combs, was stopped beside Ward in the adjacent lane of

traffic. Combs had also been at the pool party and was driving a group of her friends

and her 14-year-old brother, Emerson, to the same after-party that Ward and his friends

were traveling to attend. Ward and Combs saw each other as they were sitting side-by-

side at the traffic light, and they both took off fast on Olive Road once the light turned

green.

{¶ 7} Combs testified that, when she took off from the traffic light, she drove 80

miles per hour down Olive Road. Combs testified that Ward kept up with her speed and

eventually positioned his vehicle behind her once Olive Road went from two lanes to one.

During that time, Combs testified that she and Ward passed two or three vehicles on Olive

Road by weaving in and out of the oncoming traffic lane. Combs claimed that, when she

approached an intersection with Little Richmond Road, she drove into a turn lane and

stopped her vehicle at a traffic light that was positioned at the intersection. Combs

testified that Ward then passed her and went straight through the intersection while the

traffic light was red. Combs testified that Ward traveled through the intersection at

approximately 75 miles per hour without braking. Thereafter, Combs saw Ward’s vehicle

collide with a vehicle traveling on Little Richmond Road; Ward’s vehicle flew into the air, -5-

touched a power line, caught fire, and landed in a nearby wooded area, while the other

vehicle flipped over and landed in a ditch off the road.

{¶ 8} Combs’ brother, Emerson, who had been in the SUV with Combs, testified to

seeing Ward, Stephens, and Wilson stopped next to them at a traffic light by the Trotwood

police station. After that, Emerson testified that Combs started to drive fast down Olive

Road, which he noted had a speed limit of 35 miles per hour. Emerson testified that he

told Combs to slow down and that Combs thereafter drove into a turn lane and stopped

their vehicle at a red light at the intersection of Little Richmond Road. Emerson testified

that he saw Ward’s vehicle pass them on the driver’s side and then collide with another

vehicle traveling on Little Richmond Road. Emerson called 9-1-1 to report the accident.

An audio-recording of Emerson’s 9-1-1 call was played for the jury and admitted into

evidence as State’s Exhibit 66. During the call, Emerson can be heard telling the

operator that: “The car that is on fire ran a red light.”

{¶ 9} Another motorist, Karrie Canady, testified that on the day of the accident, she

was driving 40 miles per hour on Olive Road when an SUV and another vehicle following

the SUV came up quickly behind her and passed her by driving into the oncoming traffic

lane. Canady testified that both vehicles were traveling at the same rate of speed, which

she estimated was approximately 65 to 70 miles per hour. Canady testified that the SUV

took a wide right turn onto Little Richmond Road while the other vehicle behind it went

straight through the intersection after the traffic light had turned red. The next thing

Canady remembered was seeing smoke and hearing a collision. Canady called 9-1-1

and reported the accident; an audio recording of Canady’s 9-1-1 call was played for the -6-

jury and admitted into evidence as State’s Exhibit 67. During the call, Canady can be

heard saying: “There’s been a really really bad car accident on Little Richmond and it’s

on fire. It’s in the woods. I know he passed me probably going about a good 100 miles

per hour.” During the call, Canady also advised the 9-1-1 operator that there was a baby

in one of the vehicles.

{¶ 10} Kimberly Moore, a resident who lived near the intersection of Olive and Little

Richmond Roads, testified that on the day of the accident, she was walking her dog when

she heard a loud explosion and saw a vehicle flying into pieces. Moore testified that the

vehicle was so high in the air that she could see it over the top her next-door neighbor’s

roof. Moore testified that she did not recall hearing any brakes or screeching of tires.

Moore testified that she immediately called 9-1-1 while her boyfriend ran toward the front

of their driveway. Moore testified that when her boyfriend came back, he told her that

there was a baby in one of the vehicles. Moore also testified to seeing a young woman

jump out of an SUV and pace up and down the street while frantically screaming: “It’s my

fault; I should have told him no.” Trial Tr. Vol. I, p. 44.

{¶ 11} Lieutenant Michael Snyder of the Trotwood Fire Department was the first

officer to arrive at the scene of the accident. Lt. Snyder testified that when he arrived,

he saw a vehicle off to the left of the road on its side against a pole and another vehicle

in the woods fully engulfed in flames. Lt. Snyder testified that he and another officer

made their way into the woods and extinguished the flames coming from the vehicle that

was on fire. After doing so, Lt. Snyder observed two victims inside the vehicle who were

charred beyond recognition. Snyder testified that a third person, Ward, was found -7-

approximately 20 yards from the vehicle and that Ward had a broken leg.

{¶ 12} Continuing, Lt. Snyder testified that he observed a female lying halfway out

of the other vehicle and that she showed no signs of life. Lt. Snyder testified that he

became concerned upon observing a child safety seat in the female’s vehicle. However,

shortly after observing the safety seat, Lt. Snyder saw a bystander walking with the child

who had been in the vehicle. Lt. Snyder testified that the child was given to a medic and

taken to Dayton Children’s Hospital. In addition, Lt. Snyder identified photos of the

accident scene, which were taken by Trooper Alexander Davis of the State Highway

Patrol. Tpr. Davis testified at trial and confirmed that he had taken the photographs in

question and that he had helped prepare a basic field sketch of the accident scene.

{¶ 13} Coroner Lee Lehman testified to performing autopsies on the three victims

who died in the accident. Lehman testified that Leah Smith had several broken bones

and internal injuries and that her cause of death was a fracture to the base of her skull,

which severed her brainstem. Lehman testified that Stephens had a ruptured liver and

that his cause of death was a torn aorta of the heart. Lehman testified that Wilson had

fractures in his femur and spine, liver lacerations, and a fatal head trauma that caused

bleeding over the surface of his brain. Lehman further testified that the victims’ injuries

were consistent with a highway-speed collision.

{¶ 14} Officer Sherri Jackson, who had also testified at the suppression hearing,

confirmed that the speed limit on Olive Road was 35 miles per hour and 45 miles per hour

on Little Richmond Road. Ofc. Jackson also testified regarding her interview with Ward

on July 29, 2020, at his residence. An audio-recording of the interview was played for -8-

the jury and admitted into evidence as State’s Exhibit 68(A). On the recording, Ward

said that the traffic light at the intersection in question went from green to yellow as he

approached, and that the light was yellow as he went through the intersection. Ward

also told Ofc. Jackson that he had never driven in the oncoming traffic lane, had not been

speeding when he went through the intersection, and had not seen the other vehicle

coming from Little Richmond Road. Ward also indicated that he, Stephens, and Wilson

had been singing, dancing, and having fun in the vehicle immediately before the accident.

{¶ 15} Trooper Jaysen Kelly of the State Highway Patrol, an expert traffic accident

reconstructionist who prepared a crash reconstruction report on the accident in question,

testified that he had used a piece of survey equipment known as a Trimble Total Station

to create profiles of the accident scene and the vehicles. According to Tpr. Kelly, those

profiles helped him determine the vehicles’ “crush damage.” Trial Tr. Vol. II, p. 238.

Tpr. Kelly also testified that his calculations established that, at the time of the accident,

Ward had been traveling within a range of 70.02 to 78.96 miles per hour, and that Leah

Smith had been traveling within in a range of 40.5 to 45.6 miles per hour. Id. at 259-262.

Tpr. Kelly also testified that, even without using any mathematical or scientific

calculations, his experience and common sense led him to believe that the accident

involved a high rate of speed.

{¶ 16} Ward testified that he accepted the accuracy of the speeds testified to by

Tpr. Kelly and thus admitted to speeding during the accident. Ward testified that he had

told Ofc. Jackson that he was not speeding during his interview with her because he had

been in denial. Ward also stipulated to the fact that his learner’s permit for driving had -9-

been suspended and that he had had no driving privileges at the time of the accident.

Regarding the accident, Ward testified that he had passed Combs on Olive Road while

she slowed down and turned right onto Little Richmond Road. Ward claimed that

Stephens had told him to go straight through the Olive and Little Richmond intersection

and that he did not remember anything else from that point on.

{¶ 17} On cross-examination, Ward acknowledged that traffic laws require

motorists to follow the speed limit, stop at red lights, and stay in the correct lane of travel.

Ward also acknowledged that failing to follow those traffic laws could result in an accident

and people getting injured or killed. Ward, however, claimed that those dangers had

slipped his mind and that he had not thought he was putting himself or others in danger

because he had looked both ways and had not seen the other vehicle coming.

{¶ 18} After considering the foregoing testimony and exhibits, the jury found Ward

guilty on all three counts of aggravated vehicular homicide. Pursuant to the Reagan

Tokes Act, the trial court ordered Ward to serve an aggregate, mandatory minimum term

of 24 years in prison to a maximum term of 28 years in prison. The trial court also

ordered Ward to pay restitution and suspended his driving privileges for life.

{¶ 19} Ward appeals from his conviction, raising four assignments of error for

review. For purposes of clarity, we will address Ward’s assignments of error out of order.

Second Assignment of Error

{¶ 20} Under his second assignment of error, Ward contends that the trial court

erred by failing to grant his motion to suppress the statements he made during his -10-

interviews with Tpr. Jones and Ofc. Jackson. Ward contends that his statements to the

officers should have been suppressed because the officers had not advised him of his

Miranda rights before questioning him.

Standard of Review and Miranda

{¶ 21} When ruling on a motion to suppress, a trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” (Citation omitted.) State v. Retherford,

,

(2d Dist. 1994). As a result, when we review suppression

decisions, “we are bound to accept the trial court’s findings of fact if they are supported

by competent, credible evidence. Accepting those facts as true, we must independently

determine as a matter of law, without deference to the trial court’s conclusion, whether

they meet the applicable legal standard.”

{¶ 22} In Miranda v. Arizona,

,

,

(1966),

the United States Supreme Court adopted procedural safeguards to secure the Fifth

Amendment’s constitutional guarantee against self-incrimination. State v. Hudson, 2d

Dist. Montgomery No. 29333,

; In re M.H.,

, 2020-

Ohio-5485,

, ¶ 18. “Miranda requires police to give a suspect certain

prescribed warnings before [a] custodial interrogation commences and provides that if the

warnings are not given, any statements elicited from the suspect through police

interrogation in that circumstance must be suppressed.” State v. Petitjean,

,

(2d Dist. 2000). In other words, if “Miranda warnings -11-

are not given prior to a custodial interrogation, the prosecution may not use the

statements obtained from the suspect at trial.” In re M.H. at ¶ 18, citing

.

{¶ 23} “Police, however, are not required to administer Miranda warnings to every

person they question, even if the person being questioned is a suspect.” Hudson at ¶ 31,

citing State v. Biros,

,

(1997), citing Oregon v.

Mathiason,

,

,

(1977). “Rather, Miranda

warnings are required only for custodial interrogations[.]”

citing State v. Moody,

,

, ¶ 12 (2d Dist.). Custodial interrogation is

“ ‘questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.’ ” State v.

Roberts,

,

(1987), quoting

.

{¶ 24} “Determining whether questioning is ‘a custodial interrogation requiring

Miranda warnings demands a fact-specific inquiry that asks whether a reasonable person

in the suspect’s position would have understood himself or herself to be in custody while

being questioned.’ ” State v. Myers,

,

,

, quoting Cleveland v. Oles,

,

,

. Such an inquiry “focuses upon how a reasonable person in the suspect’s position

would have understood the situation.” State v. Ferguson,

,

(2d Dist.), citing Berkemer v. McCarty,

,

,

(1984). “[N]either the subjective intent of the officer, nor the subjective belief

of the defendant is relevant.” State v. Hatten,

,

,

(2d Dist.), citing State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 -12-

WL 736501, *4 (Nov. 26, 1997). (Other citation omitted.)

{¶ 25} “ ‘The factors a court should consider in applying this reasonable person

test include whether the encounter takes place in surroundings that are familiar to the

suspect; the number of law enforcement officers present, as well as their conduct and

demeanor; the degree of physical restraint imposed; and the duration and character of

the interrogation.’ ” State v. Magnone,

,

, ¶ 23 (2d Dist.),

quoting State v. Farrell, 2d Dist. Miami No. 99-CA-24,

, *3 (Oct. 8, 1999).

Other factors that may be considered are: 1) the location where the questioning took

place; 2) whether the defendant was a suspect when the interview began; 3) any

restrictions on the defendant’s freedom to leave; 4) whether the defendant was

handcuffed or was told he was under arrest; 5) whether threats were made during the

interrogation; 6) whether the defendant was physically intimidated during the

interrogation; 7) whether the police verbally dominated the interrogation; 8) the

defendant’s purpose for being at the location of the questioning; 9) whether neutral parties

were present at any point during the questioning; and 10) whether police took any action

to overpower, trick, or coerce the defendant into making a statement. Estepp at *4.

Interview at Hospital with Tpr. Jones

{¶ 26} Ward asserts that his interview with Tpr. Jones at the hospital amounted to

a custodial interrogation and that Tpr. Jones’ undisputed failure to give Miranda warnings

before the interview rendered the statements he made during the interview inadmissible.

Ward claims that the interview with Tpr. Jones amounted to a custodial interrogation -13-

because Tpr. Jones “summoned” him for questioning while he was lying in a hospital bed.

According to Ward, his injury, a broken leg, restricted his freedom of movement and

prevented him from having the ability to leave the interview. Ward further claims that he

was physically intimidated by Tpr. Jones, who was armed and in uniform while standing

over his bed questioning him. Ward claims that all these factors would have led a

reasonable person in his position to believe that he had been in custody during the

interview. We disagree.

{¶ 27} “Ohio courts have found police questioning of individuals in the hospital, at

times, to be custodial in nature.” (Emphasis added.) State v. Smith, 2d Dist. Miami No.

1995-CA-17,

, *5, citing State v. Main, 5th Dist. Stark No. CA 9562,

, (Aug. 22, 1994); State v. White, 4th Dist. Athens No. 1230,

,

(May 23, 1986). This court, however, has recognized that, unlike a police station, a

hospital is “a place an individual would normally feel free to leave[.]” Estepp, 2d Dist.

Montgomery No. 16279,

, at *5. Accord State v. Lewis, 2d Dist.

Montgomery No. 18098,

, *4 (Dec. 22, 2000). This court has also

recognized that confinement in a hospital bed does not necessarily “ ‘amount to a coercive

environment or rise to the degree or level of restraint on freedom of movement generally

associated with a formal arrest.’ ” Smith at *5, quoting State v. Shipley, 12th Dist. Butler

No. CA84-01-012,

, *3 (Oct. 22, 1984).

{¶ 28} In State v. Pyle, 2d Dist. Greene No. 2003-CA-35,

, this

court found no custodial interrogation under circumstances where an investigating officer

interviewed the defendant in a hospital room while the defendant was strapped to a -14-

backboard and wearing a neck brace. Id. at ¶ 7, 21-23. We reached this conclusion

because the defendant “was not brought to the hospital by [the investigating officer] for

questioning, but was brought by medics for treatment of his injuries.” Id. at ¶ 22.

Because the defendant was not restrained by the investigating officer, “but was restrained

for medical treatment due to his injuries[,]” we found that there was “nothing in the record

to indicate that [the defendant] was not free to leave the room due to [the investigating

officer], or that [the investigating officer] did anything to prevent [the defendant] from

leaving the room.” Id. See also Smith at *5; Lewis at *4. Accordingly, we found no

custodial interrogation and thus no Miranda violation. Pyle at ¶ 23.

{¶ 29} The present case is analogous to Pyle, as Ward was taken to the hospital

by medics for purposes of receiving medical treatment for his broken leg and other

injuries, not for police questioning. Moreover, there is nothing in the record indicating

that Tpr. Jones did anything to restrict Ward’s freedom of movement while questioning

him at the hospital. Simply because Ward was confined to a hospital bed and unable to

freely move about due to his injuries does not mean that he was in custody for purposes

of Miranda. See Smith at *5; Shipley at *3.

{¶ 30} Furthermore, Ward’s claim that Tpr. Jones “summoned” him for questioning

is unsupported by the record. While no specific finding was made by the trial court on

this matter, the record of the suppression hearing establishes that Tpr. Jones asked

hospital staff to take him to Ward’s hospital room, where Tpr. Jones then introduced

himself to Ward and explained his reason for being there, i.e., to ask questions about the

traffic accident. Suppression Tr., p. 11, 16, and 19. Nothing in the record indicates that -15-

Ward was brought to Tpr. Jones for questioning. Instead, the record establishes that

Tpr. Jones sought out Ward with the help of hospital staff, which is similar to the

circumstances in Pyle. See Pyle at ¶ 7, 21-23.

{¶ 31} In addition, Ward’s claim that Tpr. Jones was physically intimidating during

the interview is unpersuasive. As previously discussed, this claim is based merely on

the fact that Tpr. Jones was armed and in uniform while standing over Ward’s bed to

question him. Because Ward was confined to his bed and because officers like Tpr.

Jones typically wear uniforms and carry weapons while on duty, we do not find that those

attributes would have caused a reasonable person in Ward’s position to believe that he

was in custody. This is especially true since the trial court found that Tpr. Jones never

drew his weapon during the interview and never told Ward that he was under arrest.

{¶ 32} The trial court also found that the interview with Tpr. Jones lasted only 10

or 15 minutes and that Tpr. Jones wrote down all the questions and answers from the

interview. The written questions and answers were admitted into evidence during the

suppression hearing, and they established that the interview was restricted to 11

straightforward questions pertaining to the accident, the occupants in Ward’s vehicle, and

whether Ward had been under the influence of drugs or alcohol. See Suppression

Exhibit No. 5. Accordingly, there is nothing in the record indicating that Tpr. Jones

threatened or coerced Jones during the interview. In fact, the trial court found that Tpr.

Jones did not even know if Ward was a criminal suspect at the time of the interview and

that Ward was free to terminate the interview.

{¶ 33} Upon review, we find that the trial court’s findings were supported by -16-

competent, credible evidence in the record. Based on those findings, we cannot say that

a reasonable person in Ward’s position would have felt that he was in custody at the time

he was questioned by Tpr. Jones. Accordingly, there was no custodial interrogation for

which Tpr. Jones was required to give Miranda warnings. Because there was no

custodial interrogation, the trial court did not err by failing to suppress the statements that

Ward made to Tpr. Jones at the hospital.

Interview at Ward’s Residence with Ofc. Jackson and Tpr. Ambers

{¶ 34} Ward also asserts that his interview with Ofc. Jackson and Tpr. Ambers at

his residence amounted to a custodial interrogation for which Miranda warnings were

required. We again disagree.

{¶ 35} “In general, questioning by law enforcement officers is less likely to rise to

the level of a custodial interrogation when it occurs in a defendant’s home.” (Citations

omitted.) State v. Martinez, 8th Dist. Cuyahoga Nos. 103572, 103573,

. “The courts of this state have generally found that an individual is not in custody

when questioning takes place in the individual’s home and the individual is free to move

about and is questioned by an officer over a brief period of time.” State v. Chenoweth,

2d Dist. Miami No. 2010-CA-14,

, ¶ 7. See also State v. Preztak,

,

,

(8th Dist.) (no custodial

interrogation where officers knocked on defendant’s door, defendant invited officers into

her home for questioning, officers did not handcuff or restrain the defendant, and

defendant never made an attempt to end the interview). “This is because a person’s -17-

home is a place that ‘a reasonable person would have felt free to terminate the

interview[.]’ ” State v. Griffith, 8th Dist. Cuyahoga No. 97366,

,

quoting Yarborough v. Alvarado,

,

,

(2004).

{¶ 36} However, “Ohio courts have found that the ‘inherently coercive’ atmosphere

of a custodial interrogation can occur even if a suspect is questioned in his home if he is

thereby ‘deprived of his freedom of action in a significant way.’ ” (Emphasis added.)

State v. Sevrence, 6th Dist. Fulton No. F-96-001,

, *5 (Feb. 28, 1997),

quoting State v. Steers, 2d Dist. Greene No. 1989-CA-38,

, *3 (May 14,

1991), citing Orozco v. Texas,

,

,

(1969).

That, however, was not the case here.

{¶ 37} In this case, the trial court found that Ward’s interview with Ofc. Jackson

and Tpr. Ambers took place at Ward’s residence. The trial court also found that Ward’s

younger brother answered the door and let the officers inside the residence after Ward

invited the officers to talk with him inside his bedroom. Based on the audio-recorded

interview, the trial court additionally found that the interview lasted approximately 20

minutes and was conversational in nature. The trial court further found that Ward was

coherent, upbeat, and happy during the interview. In addition, the trial court found that

Ward never asked to end the interview, was not placed under arrest or detained, and the

officers did not make any promises or threaten Ward.

{¶ 38} Upon review, we find that all the trial court’s findings were supported by

competent, credible evidence in the record. Based on those findings, we cannot say that -18-

Ward was in custody or that he was deprived of his freedom in any significant way during

the interview at his residence. In so holding, we note that Ward’s freedom of movement

was restricted only by his broken leg, not by the officers. The officers never confined

Ward or prevented him from moving about while they were questioning him.

{¶ 39} For the foregoing reasons, we cannot say that a reasonable person in

Ward’s position would have believed that he was in custody during the interview at his

residence. Accordingly, there is no basis to conclude that there was a custodial

interrogation. Because there was no custodial interrogation, the trial court did not err by

failing to suppress the statements that Ward made to Ofc. Jackson and Tpr. Ambers at

his residence.

{¶ 40} Ward’s second assignment of error is overruled.

Third Assignment of Error

{¶ 41} Under his third assignment of error, Ward contends that his convictions for

three counts of aggravated vehicular homicide were against the manifest weight of the

evidence. We disagree.

{¶ 42} “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.) State v. Wilson, 2d Dist. Montgomery No.

22581,

. 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 -19-

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.’ ” State v. Thompkins,

,

(1997), 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. A judgment

of conviction should be reversed as being against the manifest weight of the evidence

only in exceptional circumstances.

.

{¶ 43} Pursuant to Ohio's aggravated vehicular homicide statute, R.C.

2903.06(A)(2)(a), the State was required to prove that Ward recklessly caused the death

of another while operating a motor vehicle. Because there was no dispute that Ward had

been driving at the time of the accident in question and that the accident had caused the

deaths of Stephens, Wilson, and Smith, the only element at issue was whether Ward had

been reckless.

{¶ 44} “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the person’s

conduct is likely to cause a certain result or is likely to be of a certain nature.” R.C.

2901.22(C). Excessive speed by itself does not constitute recklessness for purposes of

supporting a conviction for aggravated vehicular homicide. See State v. Skaggs,

,

,

(2d Dist.); State v. Whitaker,

,

(6th Dist. 1996); State v. Moore, 2d Dist. -20-

Montgomery No. 22904,

, ¶ 8. “Rather, it is one factor to consider, along

with all of the other evidence, in determining recklessness.” Skaggs at ¶ 47.

{¶ 45} In this case, E’Mariha Combs, Emerson Combs, and Karrie Canady testified

to having seen Ward exceeding the speed limit, weaving into the oncoming traffic lane to

pass vehicles, and running the red light, which led to the fatal collision at the intersection

of Olive and Little Richmond Roads. The photographic evidence and the testimony given

by the responding fire and police officers regarding the condition and placement of the

vehicles after the collision also supported the conclusion that the accident was the result

of a high-speed collision. The expert testimony given by accident reconstructionist Tpr.

Kelly further established that Ward had been traveling within a range of 70.02 to 78.96

miles per hour in a 35 mile per hour zone.

{¶ 46} In addition, Ward admitted to exceeding the speed limit in the range testified

to by Tpr. Kelly and stipulated to the fact that he had had no driving privileges at the time

of the accident. In addition, Ward acknowledged that traffic laws require drivers to follow

the speed limit, stay in the correct lane of travel, and to stop at red lights. Ward further

acknowledged that failing to abide by those traffic laws could result in someone getting

injured or killed.

{¶ 47} After reviewing the entire record, weighing the evidence and all reasonable

inferences, and considering witness credibility, we cannot say that the evidence weighed

heavily against convicting Ward of the three counts of aggravated vehicular homicide;

there was ample evidence presented at trial establishing that Ward recklessly caused the

deaths of the three victims while operating a motor vehicle. The evidence overwhelmingly -21-

established that Ward had been reckless because it showed that Ward had traveled over

twice the speed limit, had woven into the oncoming traffic lane to pass cars, and had run

a red light at an intersection, all while being an unlicensed driver and knowing that such

traffic violations could result in someone’s getting injured or killed. Accordingly, Ward’s

claim that his convictions were against the manifest weight of the evidence lacks merit.

{¶ 48} Ward’s third assignment of error is overruled.

First Assignment of Error

{¶ 49} Under his first assignment of error, Ward contends that his trial counsel

provided ineffective assistance by: (1) asking questions during his direct examination that

reiterated and validated the damaging evidence concerning the high rate of speed at

which he had been traveling; (2) failing to object to Tpr. Kelly’s testimony regarding his

use of the Trimble Total Station; and (3) failing to object to certain comments made by

the prosecutor during closing argument.

Standard of Review

{¶ 50} To succeed on an ineffective assistance claim, a defendant must establish:

(1) his trial counsel’s performance was deficient; and (2) the deficient performance

prejudiced him. Strickland v. Washington,

,

,

(1984), paragraph two of the syllabus; State v. Bradley,

,

(1989), paragraph two of the syllabus. To establish deficient performance, a

defendant must show that his trial counsel’s performance fell below an objective standard -22-

of reasonable representation.

;

. To establish prejudice,

a defendant must show that there is “a reasonable probability that, but for counsel’s

errors, the proceeding’s result would have been different.” State v. Hale,

,

,

, citing Strickland at 687-688 and Bradley at

paragraph two of the syllabus. The failure to make a showing of either deficient

performance or prejudice defeats a claim of ineffective assistance of counsel.

.

{¶ 51} In reviewing ineffective assistance claims, “ ‘we will not second-guess trial

strategy decisions, and “a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” ’ ” State v. English,

2d Dist. Montgomery No. 26337,

, ¶ 10, quoting State v. Mason,

,

(1998), quoting

. Therefore, “ ‘trial

counsel is allowed wide latitude in formulating trial strategy[.]’ ” State v. Collins, 2d Dist.

Miami No. 2010-CA-22,

, quoting State v. Olsen, 2d Dist. Clark No.

2009-CA-110,

. “Debatable strategic and tactical decisions may

not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it

looks as if a better strategy had been available.” State v. Conley,

,

, ¶ 56 (2d Dist.), citing State v. Cook,

,

(1992).

Counsel’s Questioning of Ward on Direct Examination

{¶ 52} Ward first contends that his trial counsel provided ineffective assistance -23-

during his direct examination because counsel asked questions that reiterated and

ultimately confirmed the high rate of speed at which he had been traveling at the time of

the accident. Specifically, Ward takes issue with the following line of questioning:

Q. And you heard testimony about – both from witnesses and from an

– the expert, as far as [Combs’] speed and your speed. As you sit

here today, do you accept that that’s accurate?

A. Yes.

Q. When you were talking to the officer, we heard it on the tape there

that you didn’t tell the officer you were doing 60 or 70, whatever the

speed was.

A. Correct.

Trial Tr. Vol. II, p. 303-304. According to Ward, the foregoing line of questioning

prejudiced him because it needlessly corroborated damaging testimony offered by the

State and negated the defense he gave to police during his interview, i.e., that he had not

been speeding.

{¶ 53} “In general, the manner of questioning a witness is a matter of trial strategy.”

(Citation omitted.) State v. Martin, 10th Dist. Franklin No. 05AP-495,

, citing State v. Singh,

,

,

(7th Dist.); State v. Schooler, 2d Dist. Montgomery No. 24488,

(“whether to ask [a witness] particular questions is a matter of sound trial strategy”); State

v. Barnhart, 6th Dist. Huron No. H-10-005,

, ¶ 44 (“[t]he scope and

nuances of how a particular witness is questioned fall within the ambit of trial strategy”). -24-

As previously discussed, a debatable decision concerning trial strategy cannot form the

basis of an ineffective assistance of counsel claim. Cook,

,

.

{¶ 54} In this case, the way in which counsel conducted his direct examination of

Ward was a matter of trial strategy. Given the overwhelming evidence establishing that

Ward was speeding, Ward’s trial counsel may have strategically decided to question

Ward in a manner that allowed Ward to admit he was speeding as a means to boost his

credibility in the eyes of the jury. It is important to note that Ward’s admission to speeding

was not fatal to his case. This is because the primary issue for trial was whether Ward

was reckless at the time of the accident, and, as previously discussed, excessive speed

by itself does not constitute recklessness for purposes of supporting a conviction for

aggravated vehicular homicide. Skaggs,

,

,

; Whitaker,

,

.

{¶ 55} Because counsel’s line of questioning was a matter of trial strategy, Ward’s

ineffective assistance claim as it relates to his direct examination lacks merit.

Failure to Object to Trimble Total Station Testimony

{¶ 56} Ward next claims that his trial counsel provided ineffective assistance by

failing to object to Tpr. Kelly’s testimony regarding his use of a surveying instrument

known as a Trimble Total Station. Tpr. Kelly testified to using a Trimble Total Station to

shoot profiles of the accident scene and the vehicles in order to measure the vehicle

“crush damage.” Trial Tr. Vol. III, p. 238. Ward claims that his trial counsel should have -25-

objected to the testimony that flowed from Tpr. Kelly’s use of the Trimble Total Station,

because proper foundation was not laid as to the instrument’s reliability or its purpose.

{¶ 57} Even if we were to find that counsel’s failure to object to the testimony at

issue constituted deficient performance, Ward cannot establish any resulting prejudice.

This is because even if Tpr. Kelly’s testimony pertaining to the Trimble Total Station had

been prohibited on objection, there was other ample evidence establishing Ward’s

reckless conduct at the time of the accident, i.e., the eyewitness testimony, Ward’s

admission to speeding, and his stipulation to being an unlicensed driver. In other words,

Tpr. Kelly’s expert testimony pertaining to the Trimble Total Station was not vital to Ward’s

conviction, and its absence would not have changed the outcome of Ward’s trial.

Because the outcome of Ward’s trial would not have been different had his trial counsel

objected to Tpr. Kelly’s testimony, Ward cannot establish any prejudice. Accordingly,

Ward’s ineffective assistance of counsel claim relating to that testimony lacks merit.

Failure to Object to Comments During the State’s Closing Argument

{¶ 58} Ward further claims that his trial counsel provided ineffective assistance by

failing to object to the following comments made by the prosecutor during closing

argument:

Defendant ignored all of these risks, stuck his head in the sand and

flew through that intersection at the red light thinking he was invincible.

And you know what? He survived. * * * Mike and Elgin were trapped in a

one and a half ton missile careening through that intersection in to Leah -26-

Smith’s car.

Trial Tr. Vol. III at 345.

[During his police interview, Ward] not only tells the officer about [the

music in the car and bopping around in the car] two weeks after he kills

three people, but he’s laughing about it and dancing around and showing

the officer how he was dancing along with the music, too.

Id. at 364.

{¶ 59} Also, after mentioning that Ward was an unlicensed driver who drove at

least two times over the legal speed limit, wove in and out of traffic, and ran a red light

without trying to stop or slow down, the prosecutor said: “I would have a hard time

suggesting something that would make him more reckless. I guess maybe if he was

taking a selfie while doing it?” Id. at 357.

{¶ 60} Ward claims that the foregoing comments by the prosecutor were improper

because their purpose was to inflame the emotions of the jurors. Ward also claims that

his trial counsel performed deficiently by failing to object to the comments and that said

deficient performance prejudiced him. We disagree.

{¶ 61} Prosecutors are afforded wide latitude in the presentation of closing

arguments. State v. Arrone, 2d Dist. Greene No. 2005-CA-89,

;

State v. Lott,

,

(1990). They may comment freely

on “ ‘what the evidence has shown and what reasonable inferences may be drawn

therefrom.’ ”

, quoting State v. Stephens,

, 263 N.E.2d

(1970). Accord State v. Baker,

,

,

, -27-

¶ 19 (2d Dist.). “Both parties * * * may be ‘colorful or creative’ [during closing arguments]

but not purely abusive, inflammatory, or purely derogatory.” State v. Whitaker, Ohio Slip

Opinion No.

, __ N.E.3d __, ¶ 96, quoting State v. Brown,

,

(1988).

{¶ 62} In this case, the comments at issue can certainly be described as colorful

and creative, as they were clearly designed to hold the attention of the jurors. The

comments, however, were not purely abusive or inflammatory, but firmly rooted in the

evidence presented at trial. See Arrone at ¶ 127. Accordingly, we do not find that the

State’s comments were improper. Because the comments were not improper, we do not

find that Ward’s trial counsel performed deficiently by failing to object to them.

{¶ 63} Even if we had found that counsel’s performance was deficient for failing to

object to the prosecutor’s comments, Ward cannot establish that the outcome of his trial

would have been different had his counsel objected. The evidence presented at trial

overwhelmingly established that Ward was guilty of aggravated vehicular homicide.

Moreover, the trial court specifically advised the jury that closing arguments were not to

be considered as evidence. Trial Tr. Vol. III, p. 338. Therefore, because Ward failed to

establish both deficient performance and prejudice, his ineffective assistance claim

relating to the prosecutor’s comments during closing argument lacks merit.

{¶ 64} Because all of Ward’s ineffective assistance of counsel claims lack merit,

his first assignment of error is overruled.

Fourth Assignment of Error -28-

{¶ 65} Under his fourth assignment of error, Ward contends that he was denied a

fair trial due to the State’s engaging in prosecutorial misconduct during closing argument.

In support of this claim, Ward relies on the same comments that he challenged under the

foregoing assignment of error and once again claims that the State’s comments were

excessively emotional and inflammatory. We, however, disagree.

{¶ 66} “The test for prosecutorial misconduct is whether remarks were improper

and, if so, whether they prejudicially affected substantial rights of the accused.” State v.

Jones,

,

(2000), citing State v. Smith,

,

(1984). “The touchstone of the analysis ‘is the fairness of

the trial, not the culpability of the prosecutor.’ ” State v. Garrett, Ohio Slip Opinion No.

, __ N.E.3d __, ¶ 144, quoting Smith v. Phillips,

,

,

(1982). “Where 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.” State v.

Stevenson, 2d Dist. Greene No. 2007-CA-51,

, citing State v. Loza,

,

(1994).

{¶ 67} As previously discussed, prosecutors are afforded wide latitude in the

presentation of closing arguments. Arrone, 2d Dist. Greene No. 2005-CA-89, 2006-

Ohio-4144, at ¶ 126; Lott,

,

. “For a prosecutor’s

closing argument to be prejudicial, the remarks must be ‘so inflammatory as to render the

jury’s decision a product solely of passion and prejudice.’ ” Arrone at ¶ 126, quoting

State v. Williams,

,

(1986). “ ‘Even if the -29-

prosecutor’s statements during closing arguments are improper, reversal based upon

those statements is warranted only if the statements permeate the entire atmosphere of

the trial.’ ”

quoting State v. Tumbleson,

,

(12th Dist. 1995).

{¶ 68} In this case, because Ward failed to object to any of the State’s comments

at issue, his prosecutorial misconduct claim will be reviewed for plain error. In order to

prevail under a plain-error review, Ward must establish both that misconduct occurred

and that but for the misconduct, the outcome of his trial clearly would have been different.

State v. Mammone,

,

,

, citing

State v. Barnes,

,

(2002).

{¶ 69} Under the previous assignment of error, we already determined that the

prosecutor’s comments during closing argument were not improper because they were

rooted in the evidence presented at trial and were not purely abusive or inflammatory.

Ward also cannot establish that the outcome of his trial would have been different but for

the comments, as there was overwhelming evidence establishing the three counts of

aggravated vehicular homicide. Accordingly, Ward was not prejudicially affected by the

State’s comments and thus cannot establish prosecutorial misconduct or plain error.

{¶ 70} Ward’s fourth assignment of error is overruled.

Conclusion

{¶ 71} Having overruled all four assignments of error raised by Ward, the judgment

of the trial court is affirmed. -30-

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

EPLEY, J. and LEWIS, J., concur.