[Cite as State v. Sanders, 2009-Ohio-5437.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-09-01

        v.

MARVIN L. SANDERS,                                        OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2008 0289

                                      Judgment Affirmed

                           Date of Decision: October 13, 2009




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Alissa M. Sterling for Appellee
Case No. 1-09-01


PRESTON, P.J.

       {¶1} Defendant-appellant, Marvin L. Sanders (hereinafter “Sanders”),

appeals the Allen County Court of Common Pleas’ judgment of conviction and

sentence on four felony charges. For the reasons that follow, we affirm.

       {¶2} On September 11, 2008, the Allen County Grand Jury returned an

indictment against Sanders charging him with the following four counts: count

one, aggravated robbery with a firearm specification in violation of R.C.

2911.01(A)(1), a felony of the first degree; count two, aggravated burglary with a

firearm specification in violation of R.C. 2911.(A)(2), a felony of the first degree;

count three, abduction with a firearm specification in violation of R.C.

2905.02(A)(2), a felony of the third degree; and count four, having weapons while

under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree.

Sanders entered pleas of not guilty to each count.

       {¶3} On November 3, 2008, Sanders filed two motions to suppress. In his

first motion to suppress, Sanders requested to suppress the identification made

through a photographic lineup; and in his second motion to suppress, Sanders

challenged the statements he had made to a law enforcement officer. A hearing on

both motions was held on November 18, 2008, and subsequently, the trial court

overruled his motions.




                                         -2-
Case No. 1-09-01


         {¶4} On November 24, 2008, Sanders filed two motions in limine, one

dealing with the use of the photographic lineup as evidence, and the other dealing

with the use of Sanders’ prior criminal record at trial. On November 25 and 26,

2008, the case proceeded to trial before a jury. Prior to the start of the trial, the

trial court ruled on the motions in limine, and ultimately denied Sanders’ request

to prohibit the use of the photographic lineup as evidence, but conditionally

granted his request to prohibit evidence regarding any reference to his prior

criminal record for the purpose of establishing a “pattern” of conduct.

         {¶5} On November 26, 2008, the jury returned verdicts of guilt to all

counts as charged in the indictment. A sentencing hearing was held on December

15, 2008, at which time Sanders was sentenced to an aggregate term of twenty-

eight (28) years in prison, with three (3) of those years being mandatory for the

firearm specifications.

         {¶6} Sanders now appeals and raises five assignments of error. We elect

to address his assignments of error out of the order that they were presented in his

brief.

                          ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT COMMITTED AN ERROR
         PREJUDICIAL TO THE DEFENDANT IN OVERRULING
         THE MOTION TO SUPPRESS THE PHOTOGRAPHIC LINE
         UP AND IDENTIFICATION OF THE DEFENDANT.




                                         -3-
Case No. 1-09-01


                      ASSIGNMENT OF ERROR NO. II

      THE COURT COMMITTED ERROR IN NOT GRANTING
      THE DEFENDANT’S MOTION IN LIMINE AND
      PROFFERED   WAIVER  OF   A   PRIOR   FELONY
      CONVICTION REQUIRED AS TO COUNT 4, HAVING
      WEAPONS WHILE UNDER DISABILITY IN VIOLATION
      OF OHIO REVISED CODE SECTION R.C. 2923.13(A)(3)
      WHEN ALSO COMBINED WITH AN ERROR IN JURY
      INSTRUCTIONS.

                     ASSIGNMENT OF ERROR NO. III

      DEFENDANT WAS DEPRIVED EFFECTIVE ASSISTANCE
      OF COUNSEL IN THIS CASE BY COUNSEL FAILING TO
      STIPULATE AS TO DEFENDANT’S PRIOR CONVICTION.

                     ASSIGNMENT OF ERROR NO. IV

      THE   DEFENDANT’S CONVICTION  SHOULD   BE
      OVERTURNED DUE TO MISCONDUCT ON BEHALF OF
      THE PROSECUTOR.

                      ASSIGNMENT OF ERROR NO. V

      THE DEFENDANT’S CONVICTION IS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.

                            Assignment of Error No. I

      {¶7} In his first assignment of error, Sanders argues that the trial court

erred by overruling his motion to suppress the photographic lineup and

identification made by the victim when the lineup was unduly suggestive.

Specifically, Sanders claims that when applying the facts presented at the hearing

to the applicable test, there were insufficient facts presented at the motion to



                                       -4-
Case No. 1-09-01


suppress hearing which would have justified the trial court’s decision to overrule

his motion.

       {¶8} The State responds by arguing that the trial court did not err in

overruling Sanders’ motion to suppress with respect to the photographic lineup

and identification. The State claims that there was sufficient evidence presented to

establish that the photographic lineup was not impermissibly suggestive and that

the victim’s identification of Sanders was reliable.

       {¶9} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role

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

credibility of witnesses. See State v. Carter (1995), 72 Ohio St.3d 545, 552, 651

N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside, 2003-Ohio-5372, at ¶8. With respect to the trial

court’s conclusions of law, however, our standard of review is de novo and we

must decide whether the facts satisfy the applicable legal standard.          State v.

McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.

       {¶10} When a witness has been confronted with a suspect before trial, due

process requires that a trial court must suppress the witness’s identification of the



                                         -5-
Case No. 1-09-01


suspect if the confrontation was unnecessarily suggestive of the suspect’s guilt and

the identification was unreliable under the totality of the circumstances. State v.

Murphy (2001), 91 Ohio St.3d 516, 534, 747 N.E.2d 765. Under this test, the

defendant bears the burden of first showing that the identification procedure was

unduly suggestive. State v. Beckham, 2d Dist. No. 19544, 2003-Ohio-3837, ¶10.

If the defendant is able to meet that burden, then the trial court must consider

whether the identification, viewed under the totality of the circumstances, is

reliable despite the suggestive procedure. Id., citing State v. Wills (1997), 120

Ohio App.3d 320, 324, 697 N.E.2d 1072. However, if the pretrial confrontation

procedure was not unduly suggestive, any remaining questions as to reliability will

go to the weight (not admissibility) of the identification for the trier of fact to

decide, and no further inquiry into the reliability of the identification is required.

Id.

         {¶11} Here, at the suppression hearing, Detective Philip Kleman of the

Lima Police Department testified regarding the victim’s identification of Sanders.

According to Detective Kleman, he started considering Sanders as a possible

suspect when the police discovered one of Sanders’ fingerprints at the scene of the

crime.    (Nov. 18, 2008 Tr. at 4).     In addition, Detective Kleman stated that

Sanders’ physical description matched the physical description of one of the

suspects who had initially entered the victim’s residence and held him at gunpoint.



                                         -6-
Case No. 1-09-01


(Id.). Once Sanders’ became a suspect, Detective Kleman testified that another

officer found a picture of Sanders in the department’s database, then that officer

ran the information through the computer, which generated a series of potential

pictures that it found similar to Sanders’ picture. (Id.). From there, Detective

Kleman said that they hand-picked five photographs that they thought most likely

resembled Sanders. (Id. at 4-5).

       {¶12} On July 14, 2008, Detective Kleman showed the victim the six

pictures in a photographic lineup. (Id. at 5). Specifically, Detective Kleman told

the victim:

       I basically tell everyone the same, that is to take your time
       looking at the pictures. Don’t get hung up on lighting
       conditions. Maybe the length of the hair could be off a little bit,
       depending on whether they had shaved the day of the crime, or
       hadn’t shaved when the photograph was taken. So, I tell them to
       focus in on the physical characteristics of the face in particular.
       You know, I always tell them to take their time and review all six
       photographs. Don’t make no rush decisions.

(Id. at 5-6). In addition, Detective Kleman testified that neither he nor anyone else

did anything or said anything that would have suggested that Sanders was one of

the pictures. (Id. at 6).

       {¶13} Detective Kleman stated that after looking at the pictures for a short

time, the victim picked out Sanders as the suspect who had robbed and assaulted

him. (Id.). On cross-examination, while Detective Kleman could not recall the

specifics of the physical characteristics the victim had given to the police, which


                                         -7-
Case No. 1-09-01


had been recorded in the police report, he did state that Sanders’ physical

characteristics were similar to the description the victim had given initially. (Id. at

17). Given the similar characteristics, plus the fact that Sanders’ fingerprint had

been found and identified at the crime scene, Detective Kleman decided to use

Sanders in the photographic lineup. (Id. at 17).

       {¶14} Upon review of the record, we cannot find that the trial court erred

in determining that the photographic lineup was not unduly suggestive. While

Sanders argues that there was insufficient evidence to show that the victim’s

description initially given to the police was accurate or that the victim had had the

necessary degree of attention to give a proper description, this argument goes to

the victim’s reliability, not the photographic lineup procedure. State v. Wilson,

2nd Dist. No. 22624, 2009-Ohio-1038, ¶18 (appellant’s arguments that the lineup

was unduly suggestive went to the reliability of the victim’s in-court identification

and did not render the lineup from which the victim identified the appellant unduly

suggestive). As stated above, the first step in determining whether a photographic

lineup and identification should be suppressed is whether the procedure was

unduly suggestive. Only if the procedure is found to have been unduly suggestive

should a trial court consider the reliability of the victim’s identification. Beckham,

2003-Ohio-3837, at ¶10.




                                         -8-
Case No. 1-09-01


       {¶15} In this case, there was nothing unduly suggestive in the manner in

which the photographic lineup was created. The computerized method of creating

photospreads avoids most potential unfairness and almost any claim that the lineup

was suggestive. State v. Armstrong, 2nd Dist. No. 20964, 2006-Ohio-1805, ¶19,

citing State v. Beckham, 2nd Dist. No. 19544, 2003-Ohio-3837.               Here, the

photographic lineup was created as a result of both having found Sanders’

fingerprint at the scene of the crime, and that his physical characteristics matched

the initial description given by the victim. Also, there is simply nothing about the

photographic lineup in this case that causes Sanders’ photograph to stand out more

than the others or would entice the victim to choose his photograph over the

others: all the subjects are young black men, with similar hair styles, facial

features, skin color, and clothing. (State’s Ex. 30). Moreover, neither Detective

Kleman’s instructions nor the manner in which the lineup was presented to the

victim were unduly suggestive. Detective Kleman testified that he told the victim

to look at all six photos, to take his time, to focus on the characteristics and not to

get hung up on the lighting conditions. In addition, Detective Kleman stated that

he did not in any way influence the victim when he met with him and showed him

the photographic lineup.

       {¶16} Because the photographic lineup and the manner in which it was

presented to the victim were not unduly suggestive, there is no need to further



                                         -9-
Case No. 1-09-01


inquire into the reliability of the identification by the victim. Armstrong, 2006-

Ohio-1805, at ¶20, citing Beckham, 2003-Ohio-3837. Therefore, we conclude that

the trial court did not err in denying Sanders’ motion to suppress the photographic

lineup and identification made by the victim.

       {¶17} Sanders’ first assignment of error is, therefore, overruled.

                              Assignment of Error No. V

       {¶18} In his fifth assignment of error, Sanders argues that his convictions

are against the manifest weight of the evidence. In response, the State claims that

it proved its case through the testimony of various witnesses and admission of

physical evidence at trial.

       {¶19} In determining whether a conviction is against the manifest weight

of the evidence, a reviewing court must examine the entire record, “‘[weigh] the

evidence and all reasonable inferences, consider the credibility of witnesses and

[determine] whether in resolving conflicts in the evidence, the [trier of fact]

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

conviction must be reversed and a new trial ordered.’” State v. Thompkins (1997),

78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio

App.3d 172, 175, 485 N.E.2d 717. A reviewing court must, however, allow the

trier of fact appropriate discretion on matters relating to the weight of the evidence




                                        -10-
Case No. 1-09-01


and the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230,

231, 227 N.E.2d 212.

       {¶20} Here, Sanders was indicted with the following four counts: count

one, aggravated robbery with a firearm specification in violation of R.C.

2911.01(A)(1), a felony of the first degree; count two, aggravated burglary with a

firearm specification in violation of R.C. 2911.11(A)(2), a felony of the first

degree; count three, abduction with a firearm specification in violation of R.C.

2905.02(A)(2), a felony of the third degree; and count four, having weapons while

under disability in violation of R.C. 2923.13(A)(3), a felony of the third degree.

       {¶21} Aggravated robbery is defined under R.C. 2911.01(A)(1) and states:

       (A) No person, in attempting or committing a theft offense, as
       defined in section 2913.01 of the Revised Code, or in fleeing
       immediately after the attempt or offense, shall do any of the
       following:

       (1) Have 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.

Aggravated burglary is prescribed under R.C. 2911.11(A)(2) and states:

       (A) No person, by force, stealth, or deception, shall trespass in
       an occupied structure or in a separately secured or separately
       occupied portion of an occupied structure, when another person
       other than an accomplice of the offender is present, with purpose
       to commit in the structure or in the separately secured or
       separately occupied portion of the structure any criminal
       offense, if any of the following apply:

       ***


                                        -11-
Case No. 1-09-01



       (2) The offender has a deadly weapon or dangerous ordnance
       on or about the offender’s person or under the offender’s
       control.

R.C. 2905.02(A)(2) defines abduction as:

       (A) No person, without privilege to do so, shall knowingly do
       any of the following:

       ***

       (2) By force or threat, restrain the liberty of another person
       under circumstances that create a risk of physical harm to the
       victim or place the other person in fear.

Finally, having a weapon while under a disability, is defined under R.C.

2923.13(A)(3), which states:

       (A) Unless relieved from disability as provided in section
       2923.14 of the Revised Code, no person shall knowingly acquire,
       have, carry, or use any firearm or dangerous ordnance, if any of
       the following apply:

       ***

       (3) The person is under indictment for or has been convicted of
       any offense involving the illegal possession, use, sale,
       administration, distribution, or trafficking in any drug of abuse
       or has been adjudicated a delinquent child for the commission of
       an offense that, if committed by an adult, would have been an
       offense involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse.

In addition, counts one, two, and three all included firearm specifications pursuant

to R.C. 2941.145(A), which provides for a mandatory three-year prison term if it

is found that “the offender had a firearm on or about the offender’s person or


                                       -12-
Case No. 1-09-01


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 offense.”

       {¶22} At trial, Officer Andrew Johnson of the Lima Police Department was

the first witness called by the State and testified about Sanders’ prior felony

convictions for trafficking in crack cocaine and possession of crack cocaine.

(Nov. 25, 2008 Tr. at 38). Both judgment entries of conviction were thereafter

admitted into evidence without any objections from the defense. (Id. at 129);

(State’s Exs. 25-26).

       {¶23} Next, the victim, Randy Lutterbein (hereinafter “the victim”)

testified that on July 10, 2008, at approximately 8:15 p.m., he was at his home at

211 N. Kenilworth, Lima, Ohio. (Id. at 45-47). He was sitting on his porch

reading a newspaper when he was approached by a young black male who pulled

out a gun and demanded that the victim give him his money. (Id. at 47-48). When

the victim told his attacker that he did not have any money on him, the subject

grabbed him and told him to get into his house. (Id. at 48-49). Once inside his

house, the victim turned around and saw a second male inside before he was then

struck on the head with the gun. (Id. at 50). He was then struck repeatedly on his

head and the rest of his body by his initial attacker with the gun, while the other

male subject went through his house searching for money. (Id. at 51-52). The



                                         -13-
Case No. 1-09-01


victim testified that he made several attempts to get up or move, but each time he

did he would get hit. (Id. at 52). At one point, the victim said that his initial

attacker told him that he was going to shoot him. (Id. at 55). The victim stated

that he was bleeding so much that he was getting light-headed and thought he was

going to die. (Id. at 54-55). Then, the victim said he decided to make-up a story

and told his attackers that his father was on his way over and would be there

within a few minutes. (Id. at 55). A few minutes later, someone knocked at the

door and it became silent. (Id. at 56). Eventually, the victim managed to get the

door open, only to discover a third male subject, who tried to force his way into

the house and keep the victim from leaving. (Id.). The victim testified that he was

able to get past the third attacker, and ran into a neighbor’s house, who called the

police. (Id. 56-57). Eventually, the victim was taken to a hospital where he was

treated for his injuries, which included scrapes and contusions, and he had to get

multiple staples for the lacerations to his head. (Id. at 58).

       {¶24} The victim said that he then met with Detective Kleman to discuss

the case. He said that he was able to provide a description of the suspect who had

approached from the sidewalk because there had been nothing to obstruct the

suspect’s face, as opposed to the other two suspects who had been wearing

hoodies over their faces. (Id. at 61). The victim identified his initial attacker as

Sanders in both a pre-trial photographic lineup and at trial. (Id. at 61-63). The



                                         -14-
Case No. 1-09-01


victim testified that he had been able to get a good look at his initial attacker, and

that this person had also been the one who had pulled the gun on him, forced him

inside his house, hit him on the head with the gun, and then repeatedly hit him

while he was inside the house. (Id. at 61-63). In addition, the victim said when he

had returned to his house after the incident, he noticed that the money he had just

cashed from his paycheck was now missing. (Id. at 62).

       {¶25} Next, Detective Kleman testified that while he had not been called to

the scene on the night of the crime, he was assigned the case and contacted the

victim and arranged an interview for July 14, 2008. (Id. at 75). He also stated that

while processing the crime scene, another officer had found a fingerprint and

identified it as belonging to Sanders. (Id. at 76). Based on this information, he

had the officer create a photographic lineup, which he showed to the victim, who

identified Sanders as the suspect who had initially attacked him. (Id. at 76-79).

With the positive identification by the victim and Sanders’ fingerprint at the scene,

Detective Kleman obtained an arrest warrant, and Sanders was arrested on July 18,

2008. (Id. at 79).

       {¶26} Agent David Hammond, who had been an officer at the Lima Police

Department at the time of the incident, testified that he was the officer who had

processed the scene on July 10, 2008. (Id. at 98-111). While processing the

scene, Agent Hammond testified that he had located blood in several rooms of the



                                        -15-
Case No. 1-09-01


victim’s house, the victim’s torn bloody t-shirt, a newspaper on the porch, pulled

and scattered dresser drawers, and a palm print on an old school desk near the

point of exit. (Id. at 98-119); (State’s Ex. 1-21, 27-29). Agent Hammond stated

that even though he ran the palm print through A.F.I.S. and it had identified

Sanders as the most likely match, Agent Hammond still conducted his own

individual comparison, which resulted in positively matching the palm print to

Sanders. (Id. at 113-19). While Agent Hammond acknowledged that he was

unable to tell when the palm print was placed on the victim’s school desk, he did

state that he looked at the top three matches given to him by the computer

program, and was able to positively identify the palm print as belonging to

Sanders. (Id. at 119-24).

      {¶27} At this time the State’s 30 exhibits were entered into evidence, with

no objections from the defense, and the State rested. After the defense made a

Crim.R. 29 motion for acquittal, which the trial court overruled, the defense then

presented its case. The first witness it called was Alexis Sanders. She testified

that she was working at Cash’s Carry Out on July 10, 2008, until 8 p.m., at which

time she left the carry out and went to a party that was occurring at the car wash

across the street. (Id. at 133-34). She said that she was familiar with Sanders and

remembered him coming over to purchase beer while she was working, and also




                                       -16-
Case No. 1-09-01


remembered seeing him at the party when she went over after work. (Id. at 133-

36).

       {¶28} Next, Shameeka Cloud testified that Sanders’ brother, Marvell

Sanders, owned the car wash and had thrown her a birthday party on July 10,

2008. (Id. at 140-41). She stated that she had seen Sanders at the car wash and

party from 5:00 p.m. to at least 9:00 p.m., and that he had only left once, which

was to go to the carry out across the street.       (Id. at 145).   In addition to

Shameeka’s alibi testimony, Cala Brown, Cortez Brown, and Andrea Barnett

testified that Sanders had been at the car wash and birthday party the night of July

10, 2008, and in fact, had driven them all home around 9:30 p.m. (148-76).

       {¶29} Damon Glenn, who lived down the street from the victim, testified

that on the night of July 10, 2008, he saw two guys over by the fence directly

across the street from his house. (Nov. 26, 2008 Tr. at 187). He said that these

two individuals came through the fence about twenty minutes later, and that

another fifteen minutes later, he heard an ambulance siren and the police arrived.

(Id.). Damon testified that he was familiar with both Sanders and his brother, but

said that he never saw either one of them that day. (Id. at 188-89). In addition to

Damon’s testimony, Anthony Goings, who also lived across the street from the

victim and was familiar with Sanders, testified that on several prior occasions he




                                       -17-
Case No. 1-09-01


had witnessed several people coming and going from the victim’s house, including

Sanders and his brother. (Id. at 190-92).

       {¶30} Then Sanders’ brother, Marvell Sanders, testified. He stated that on

July 10, 2008, he and Sanders were working at his car wash all day, and then later

in the evening, Sanders had stayed for the birthday party at the car wash for

Shameeka. (Id. at 195-97). In describing the birthday party, Marvell stated that:

       [t]here was a lot of, you know, it was like traffic. Some people
       might come through and get something to eat and might talk
       around for a minute, or might go across the street and come
       back and talk and then leave. Some people - - like I say, they
       wanted their car washed. Some people might want their car
       washed, * * * It was a whole bunch of people on and off.

(Id. at 204). At one point in the evening, Marvell said that there were at least forty

people at the birthday party, including himself, Sanders, Cala, Andrea, Shameeka,

Greg Gilcrease, Legas, Ananias, Mike Anderson, and Elmer Cunningham. (Id. at

204, 208-09). Around 8 p.m., Marvell decided to go back to his house (which is

on the same street as the victim’s residence), and when he left the car wash

Sanders was still there partying and there was still a lot of traffic coming in and

out from the party. (Id. at 209). Marvell testified that not five minutes after he

had left and arrived at his house, he heard sirens and saw police officers and an

ambulance down the street. (Id. at 203).

       {¶31} Additionally, Marvell said that he knew the victim because the

victim had sold him and Sanders drugs on a number of occasions. (Id. at 205).


                                        -18-
Case No. 1-09-01


While Marvell said he no longer did drugs and had only been inside the victim’s

house a few times, he said that his brother continued to buy drugs from the victim

and that he had seen Sanders go into the victim’s house numerous times. (Id. at

206). On cross-examination, Marvell acknowledged that he had a criminal record

and that Sanders had just gotten out of jail a few months prior to the incident on

July 10, 2008. (Id. at 208-11). Nevertheless, Marvell said that when he had left

the car wash at 8 p.m., the party was still going and Sanders was still there. (Id. at

209).

        {¶32} Next, Sanders took the stand and testified that on July 10, 2008, he

had been helping his brother at his car wash all day, and that he had stayed at the

birthday party until around 9:30 p.m., at which time he left and drove four other

people home. (Id. at 220, 229-31). Sanders stated that he was very familiar with

the victim, who he knew as “Jay,” because he had been buying cocaine from him

since November of 2006. (Id. at 224-26). Sanders also stated that he had been

inside the victim’s house a number of times, each time to buy drugs from him, and

that the last time he had been inside the victim’s house was on July 9, 2008, to

purchase cocaine. (Id. at 227). On this last visit, Sanders said that the victim

confronted him about not paying him the money Sanders owed him from prior

drug purchases, which Sanders said was around $2,700.               (Id. at 227-28).

However, Sanders said that he told the victim that he was not going to pay him



                                        -19-
Case No. 1-09-01


because the cocaine he had been given had been “garbage.” (Id. at 228). That was

the last time Sanders had seen the victim, because the next day, Sanders was at the

car wash helping his brother during the day, then at night, he had stayed for the

birthday party. (Id. at 229-31).

         {¶33} In response to why his palm print was found in the victim’s house,

Sanders said that their drug transactions would take place all over the victim’s

house:

         I would sit in Randy’s front room where his T.V. is sitting at. * *
         * Sometimes Randy would be standing in the kitchen weighing
         up whatever he was weighing up. The kitchen is right there, or,
         the laundry room is right there from the kitchen. * * * I was
         sitting on that desk before, on top of the desk, watching him do
         what he’s doing right there – getting my stuff together right
         there. I’m sitting on top of the desk right there. The desk was in
         the laundry room right here. The kitchen was right there.

         {¶34} Id. at 232-33). Sanders admitted that he had a criminal record, but

stated that he had never been convicted of robbery, burglary, or assault; rather, he

had prior convictions for possession of crack cocaine, trafficking crack cocaine,

and fleeing and eluding. (Nov. 26, 2008 Tr. at 220-22, 233). Because of his past

criminal record, Sanders said he was well aware that his fingerprints and picture

were part of the police department’s computer system, thus he would have never

committed the criminal act in the manner the victim had described. (Id. at 234).

         {¶35} Finally, Dashanna McClellan was the last witness for the defense

and she testified that on July 15, 2008, she had been robbed by “[t]hree black


                                        -20-
Case No. 1-09-01


guys,” who had pushed her into her house and held her at gun point while they

ransacked her house. (Id. at 248-49). She was never able to identify any of the

suspects because she never tried to look at them while they were robbing her and

because they were all wearing some kind of disguise. (Id.). Nevertheless, she did

state that none of the suspects was Sanders because he has been a friend of her

family’s for the last 10-15 years, so she would have been able to recognize him if

he had been one of the suspects. (Id. at 250-51).

       {¶36} Subsequently, the defense rested and the State called three witnesses

for its rebuttal. First, the victim took the stand again and testified that while his

middle name is “Jay,” he has always gone by “Randy.” (Id. at 255). In addition,

he stated that he does not use or sell drugs, nor has he ever been involved in that

sort of a lifestyle. (Id. at 256). Agent Hammond also testified again. He testified

that over the years as a crime scene technician he has processed numerous crime

scenes where there was drug activity. (Id. at 264). A lot of times he said he will

find drug paraphernalia, such as rolling papers, crack pipes, metal mesh, and

different sizes of plastic baggies, and sometimes the victim will give him

instructions as far as places they do not want searched or processed, implying that

they have drugs in those locations. (Id. at 264-65). However, in this particular

case, the victim never gave Agent Hammond any limits on where he could or

could not search; and while he did not search every single item in the house, he



                                        -21-
Case No. 1-09-01


conducted a thorough search, and never found anything that would have suggested

to him that there was drug activity in the house. (Id. at 266-68).

       {¶37} Finally, Detective Kleman testified again.       He stated that in his

investigation he had conducted three separate neighborhood canvases in order to

discover whether any of the neighbors knew anything about the victim and his

alleged drug activity. (Id. at 272-74). Everyone he spoke to said that the victim

was quiet, there was very little traffic coming and going at his house, and that

none of them had ever heard anything about the victim engaging in any kind of

drug activity. (Id.). Furthermore, Detective Kleman talked to both the Allen

County Drug Agency and the Lima Police Department’s P.A.C.E. unit, and

discovered that the victim’s name had never come up as a potential drug dealer.

(Id. at 273-74).   Based on his investigation, there was never any reason for

Detective Kleman to believe that the victim sold drugs. (Id. at 274).

       {¶38} Detective Kleman further testified that knowing Sanders’ brother

was going to be testifying as an alibi witness, he had decided to pull all of the

videotapes from the patrol cars from July 10, 2008, in order to preserve any

potential evidence from being destroyed. (Id. at 274-75). After hearing all of the

defense’s alibi witnesses testify during the trial, Detective Kleman went back and

looked at the videotapes from the cruisers to see if any of them had been driving

past the intersection where the alleged party had been occurring. (Id. at 275). All



                                        -22-
Case No. 1-09-01


of the tapes indicated that there was no traffic coming and going from the car wash

where the alleged party had been occurring during the time of the evening when

the crime was being committed. (Id. at 274-77, 279-84); (State’s Exs. 32, 33, &

34). In fact, at most there were only two cars in the parking lot at the car wash

during the time when the alleged party was to have been occurring, but no

indication of traffic coming and going from that location. (Id.).

       {¶39} After the State’s rebuttal, the parties gave their closing arguments,

instructions were read to the jury, and subsequently, the jury returned guilty

verdicts on all four counts of the indictment and a date was set for sentencing.

(Nov. 26, 2008 Tr. at 351-53).

       {¶40} Based on the evidence presented at trial, we cannot conclude that

Sanders’ convictions were against the manifest weight of the evidence. With

respect to the aggravated robbery, aggravated burglary, and abduction convictions,

even the defense at trial did not dispute that there was evidence that those crimes

had occurred against the victim. (Nov. 25, 2008 Tr. at 34); (Nov. 26, 2008 Tr. at

312). With respect to the aggravated robbery conviction, the victim testified that

he had been sitting on his porch reading a newspaper when a black male walked

up to him, pulled out a gun, and demanded he give him his money. With respect

to the aggravated burglary conviction, the victim also testified that his attacker

forced him into his house at gun point, and then repeatedly hit him, sometimes



                                        -23-
Case No. 1-09-01


with the gun, while another suspect searched his house for money. With respect to

the abduction conviction, there was evidence from the victim that he was forced

into the house, had tried to get away, but was constantly hit back to the ground by

his attacker, and at one point, was told by his attacker that he was going to be shot.

In addition, the admissibility of the judgment entries and Sanders’ testimony both

illustrated that Sanders’ had prior convictions for possession and trafficking of

drugs.

         {¶41} As stated above, none of these facts were really disputed by Sanders

at trial.   The main issue was whether Sanders had been the one who had

committed those crimes against the victim. However, we believe that there was

enough evidence presented to the jury that it was reasonable to believe that

Sanders committed those crimes. First of all, the victim identified Sanders as his

initial attacker and the one who had repeatedly hit him inside his house, at both a

pretrial photographic lineup and at trial. The victim even said that he had gotten a

good look at his attacker, because the suspect had walked right up to him and did

not have any kind of disguise, unlike the other two suspects who had been wearing

hoodies over their faces. In addition, Sanders’ palm print had been found and

identified at the scene of the crime, and in particular, was found near the point

where the suspects had exited the home. There was some testimony that the

victim was engaging in drug activities, but the victim denied these allegations, and



                                        -24-
Case No. 1-09-01


the lead detective testified that he was unable to corroborate this allegation, even

though he had conducted three separate neighborhood canvases and checked with

the local law enforcement drug units. Perhaps the most support for Sanders came

from his alibi witnesses who all testified that Sanders was at a birthday party being

held at his brother’s car wash during the time when the crime was being

committed. Nevertheless, there was also testimony from the lead detective, along

with physical evidence introduced at trial, that despite these witnesses’ testimony,

there were at most two cars in the car wash parking lot, but there was not

continuous traffic coming and going from that location.

       {¶42} Overall, we find that it was within the province of the jury to believe

the testimony of the victim, the lead detective, and the physical evidence over

Sanders and his alibi witnesses. Moreover, the jury could reasonably infer that

Sanders and his witnesses were not being truthful because there were no signs of

traffic at the car wash from the police cruisers’ videotapes. Viewing all of the

evidence, we cannot conclude that the jury clearly lost its way by finding Sanders

guilty of aggravated robbery, aggravated burglary, abduction, and having a

weapon while under disability.

       {¶43} Sanders’ fifth assignment of error is, therefore, overruled.




                                        -25-
Case No. 1-09-01


                             Assignment of Error No. II

        {¶44} In his second assignment of error, Sanders argues that the trial court

erred in ruling on his motion in limine with respect to his prior criminal record as

it related to an element in count four of the indictment, having a weapon while

under disability. Initially, it appears from Sanders’ brief that he believes that the

trial court should have allowed him to waive his right to have a jury trial on the

element of a prior criminal conviction. However, Sanders acknowledges that the

current state of the law expressly prohibits waiving an element from the jury. See

State v. Sweeney (1999), 131 Ohio App.3d 765, 723 N.E.2d 655; State v. Nievas

(1997), 121 Ohio App.3d 451; 700 N.E.2d 339. Rather, in his brief, Sanders more

directly argues that the trial court erred because it allowed this evidence to be

introduced at trial and failed to give proper jury instructions at the conclusion of

the trial.

        {¶45} In response, the State argues that while Sanders’ argument may have

some merit in general application, here his argument is inapplicable because he

took the stand and testified. Because Sanders testified at trial and his testimony

was subject to the same standards of credibility like any other witness, the State

claims that the trial court’s jury instructions were not erroneous.

        {¶46} First of all, we note that the trial court did grant part of Sanders’

motion in limine with respect to using his prior conviction for other purposes, such



                                         -26-
Case No. 1-09-01


as those purposes prohibited by Evid.R. 404(B). More importantly, we note that

the trial court did not err in ruling on Sanders’ motion in limine with respect to

allowing evidence of his prior convictions to be used for purposes of establishing

an element of the offense in count four. Prior to the start of the jury trial, the trial

court held a hearing on Sanders’ motion in limine. With respect to the use of his

prior conviction, the trial court overruled Sanders’ motion “to the extent that the

State will be permitted and will be required to prove the element of the prior

conviction on count four,” but the court granted Sanders’ motion as to “other

crimes, wrongs, or acts unless there is an exception under 404(B).” (Nov. 25,

2008 Tr. at 4-6.)

       {¶47} Count four of the indictment charged Sanders with having a weapon

while under disability.    This offense is prescribed under R.C. 2923.13(A)(3),

which states:

       (A) Unless relieved from disability as provided in section
       2923.14 of the Revised Code, no person shall knowingly acquire,
       have, carry, or use any firearm or dangerous ordnance, if any of
       the following apply:

       ***

       (3) The person is under indictment for or has been convicted of
       any offense involving the illegal possession, use, sale,
       administration, distribution, or trafficking in any drug of abuse
       or has been adjudicated a delinquent child for the commission of
       an offense that, if committed by an adult, would have been an
       offense involving the illegal possession, use, sale, administration,
       distribution, or trafficking in any drug of abuse.


                                         -27-
Case No. 1-09-01



Because prior convictions are elements of the crime of having a weapon while

under disability, the State must prove them beyond a reasonable doubt. State v.

Richardson, 3d Dist. No. 13-06-21, 2007-Ohio-115, ¶38.             See, also, State v.

Nelson (Feb. 25, 1999), 8th Dist. No. 73289, at *3, citing State v. Wright (June 27,

1996), 8th Dist. No. 69386, appeal dismissed State v. Wright (1996), 77 Ohio

St.3d 1488, 673 N.E.2d 146.          Thus, because proving Sanders had a prior

conviction was an element of the crime for which Sanders was charged, not only

was it proper for the trial court to have allowed the prior conviction to be

admissible, it was required. State v. Temple (Dec. 21, 1999), 7th Dist. No. 97-JE-

19, at *7.

       {¶48} Nevertheless, essentially Sanders’ main complaint is that in allowing

the evidence of his prior conviction to be admissible at trial, the trial court erred by

then failing to give adequate jury instructions about the proper use of his prior

conviction. Specifically, Sanders argues that the following instruction to the jury

was wrong: “[y]ou may also consider a prior record in weighing credibility.”

(Nov. 26, 2008 Tr. at 342). When looking at the permissible jury instructions

regarding the use of a defendant’s prior conviction, Sanders argues that none of

the instructions allow the jury to consider the defendant’s prior conviction in

assessing his credibility as a witness.




                                          -28-
Case No. 1-09-01


       {¶49} While it is generally true that a defendant’s prior conviction can only

be used for a limited purpose, and that it cannot be used to show that he acted in

conformity with that character, when a defendant becomes a witness at trial a prior

conviction can be used to attack their credibility under Evid.R. 609(A)(2) & (3).

In this case, Sanders took the stand and testified on his own behalf and, in fact,

admitted to all of his prior convictions, not just the drug charges that were alleged

to have put him under disability. (Nov. 26, 2008 Tr. at 220-22). Because he took

the stand and testified, his testimony was subjected to the same standards for

determining credibility as apply to other witnesses. See 4 Ohio Jury Instructions

(2008), Section 409.07; State v. Hardy, 8th Dist. No. 86722, 2007-Ohio-1159,

¶¶88-90 (citation omitted). Thus, it was proper for the trial court to have included

in its instructions to the jury the statement that it could consider a prior conviction

when assessing credibility.

       {¶50} Sanders’ second assignment of error is, therefore, overruled.

                              Assignment of Error No. IV

       {¶51} In his fourth assignment of error, Sanders argues that certain

statements made during the prosecution’s rebuttal argument at closing amounted

to prosecutorial misconduct and constitute reversible error. In response, the State

argues that the prosecutor’s comments fall within the range of appropriate latitude

given to a prosecutor during closing arguments.



                                         -29-
Case No. 1-09-01


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

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

accused. The touchstone of analysis is the fairness of the trial, not the culpability

of the prosecutor.” State v. Jones (2000), 90 Ohio St.3d 403, 420, 739 N.E.2d 300

(internal citations omitted).     In opening statements and closing arguments,

prosecutors are entitled to some latitude regarding what the evidence has shown

and the inferences that can be drawn. State v. Ballew (1996), 76 Ohio St.3d 244,

255, 667 N.E.2d 369. “‘It is improper for an attorney to express his or her

personal belief or opinion as to the credibility of a witness or as to the guilt of the

accused.’” State v. Van Meter (1998), 130 Ohio App.3d 592, 601, 720 N.E.2d

934, quoting State v. Williams (1997), 79 Ohio St.3d 1, 12, 679 N.E.2d 646.

However, “[a] prosecutor may state his opinion if it is based on the evidence

presented at trial.” State v. Watson (1991), 61 Ohio St.3d 1, 10, 572 N.E.2d 97,

abrogated on other grounds by State v. McGuire (1997), 80 Ohio St.3d 390, 686

N.E.2d 1112.

       {¶53} When determining whether a prosecutor’s comments amounted to

prosecutorial misconduct, an appellate court should consider several factors in

making this determination: “(1) the nature of the remarks, (2) whether an objection

was made by counsel, (3) whether corrective instructions were given by the court,

and (4) the strength of the evidence against the defendant.” State v. Braxton



                                         -30-
Case No. 1-09-01


(1995), 102 Ohio App.3d 28, 41, 656 N.E.2d 970. The reviewing court should

also ask whether the misconduct was an isolated incident in an otherwise properly

tried case. Id. A prosecutor’s misconduct will not be considered grounds for

reversal unless the misconduct has deprived the defendant of a fair trial. Id.

       {¶54} In particular, Sanders claims that during the prosecutor’s rebuttal

argument, she made the following impermissible statement:

       Prosecutor: Finally, Mr. Benavidez makes an issue out of the
       fact that we didn’t bring in some alibi witness who was
       supposedly going to say ‘you know what, his brother contacted
       me and wanted me to be an alibi and I said that I don’t want any
       part of that’. Detective Kleman - - well, Mr. Benavidez gives
       him a hard time about not bringing that witness in, not putting
       him on the witness list, and not bringing him in to testify.
       Detective Kleman said, “You know what, he refused.” Well,
       you’ve got subpoenas. Well, yes, we do, folks. But, you know,
       you guys were all ordered to appear yesterday for jury duty and
       you did. But, you heard the Judge say there were a number of
       people that did not. Just because you get served with a paper,
       unfortunately most people aren’t like us, and I don’t want to say
       most people, but there are people that aren’t like us and don’t
       do what they’re told to do. Secondly, you know, this is probably
       just unfathomable for this defendant to understand. But, you
       know what? Detective Kleman, as well as all the other detectives
       that work for this community, yes, we have an obligation to
       investigate cases and seek justice. But, I’ll tell you, we also have
       an obligation to other people in this community to ensure their
       safety. You heard what this family and what these witnesses
       that came in here to testify do and what their convictions are.
       Shoot, Marvell said he was convicted of violent offenses. Armed
       Robbery, folks. I’d be scared, too. I wouldn’t want to get
       involved if I didn’t have to.

       Defense: I’m going to object, your Honor. The testimony was
       Robbery. The violence –


                                        -31-
Case No. 1-09-01



       The Court: This is closing argument. It’s not evidence. The
       jury is instructed –

       Defense: I would ask you to. Remind the jury of that again.

       The Court: The jury is instructed it’s not evidence. It’s closing
       argument. The objection is overruled.

       Prosecutor: My point is, if we don’t have to put people’s lives in
       jeopardy we do not. We do not.

(Nov. 26, 2008 Tr. at 325-26). Sanders claims that in the above statement, the

prosecutor implied the following impermissible things: (1) that the defendant and

his family are dangerous; (2) that the defendant and his witnesses are not like us;

(3) that the defendant and his family strike fear in even the prosecutor; (4) that the

State is protecting witnesses from some harm by not having them testify; and (5)

that the State, if it did call a witness, then that witness’ life would be in jeopardy.

       {¶55} However, we do not believe that the prosecutor’s comments

amounted to prosecutorial misconduct. First of all, when looking at her argument

in its entirety, the prosecutor made her comments in response to the defense’s

allegation that the detective was lying about having a witness who told him that

Sanders’ brother had asked him to lie to give Sanders an alibi. (Nov. 26, 2008 Tr.

at 316). Second, the defense made a timely objection, and while it was overruled

by the trial court, the trial court did give a curative instruction to the jury that the

comments were not evidence since it was closing argument. Also, this was the



                                          -32-
Case No. 1-09-01


only allegedly inappropriate comment challenged by Sanders in what would be

considered an otherwise properly tried case. Finally, and most importantly, based

on our prior manifest weight discussion, we cannot find that even if the

prosecutor’s comments were improper, that they prejudicially affected any of

Sanders’ substantial rights given the strength of the evidence against him.

       {¶56} Sanders’ fourth assignment of error is, therefore, overruled.

                            Assignment of Error No. III

       {¶57} Finally, in his third assignment of error, Sanders argues that he was

denied effective assistance of counsel because instead of offering to waive his

right to a jury trial on the element of having a prior felony conviction (which

Sanders admits is prohibited by law), his trial counsel should have offered to

stipulate to the existence of a prior conviction in order to avoid the jury learning

about the conviction. Sanders claims that because his trial counsel failed to offer a

stipulation and the jury learned of Sanders’ prior criminal record, he was denied

effective assistance of counsel.

       {¶58} The State counters by arguing that under Ohio law neither the State

nor the trial court is required to accept a stipulation offered by a defendant, thus

his trial counsel’s failure to offer a stipulation rather than a waiver is irrelevant.

State v. Baker, 9th Dist. No. 23840, 2008-Ohio-1909, ¶¶8-15, appeal accepted for

review in State v. Baker, 119 Ohio St.3d 1444, 2008-Ohio-4487, 893 N.E.2d 515,



                                        -33-
Case No. 1-09-01


appeal dismissed as being improvidently accepted in State v. Baker, 121 Ohio

St.3d 1233, 2009-Ohio-1675, 905 N.E.2d 194. Nevertheless, even if there was a

requirement to accept a stipulation of an element, such an action falls under the

category of a tactical decision, which even if debatable, is not a ground for an

ineffective assistance claim. State v. Post (1987), 32 Ohio St.3d 380, 388, 513

N.E.2d 754.

      {¶59} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

      {¶60} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.       Strickland, 466 U.S. at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d

673, 675, 693 N.E.2d 267.         Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance. State v. Carter

(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of



                                       -34-
Case No. 1-09-01


must amount to a substantial violation of counsel’s essential duties to his client.

See State v. Bradley (1989), 42 Ohio St. 3d 136, 141-142, 538 N.E.2d 373,

quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623. Prejudice

results when “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373, citing Strickland, 466 U.S. 691.

“A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373; Strickland, 466

U.S. at 694.

       {¶61} At the motion in limine hearing, Sanders’ trial counsel attempted to

waive his right to a trial by jury as it related to the State’s burden in proving the

element of a prior conviction in the charge of having a weapon while under

disability. (Motion in Limine, Doc. No. 70); (Nov. 25, 2008 Tr. at 2-3). Under the

authority of Sweeney and Nievas the trial court overruled Sanders’ counsel’s

waiver. (Id. at 6). While Sanders’ acknowledges that one cannot waive their right

to a trial by jury as to an element of an offense, he argues that his trial counsel was

ineffective for failing to stipulate to the existence of his prior convictions. In

support of his argument, Sanders points to Old Chief v. United States (1997), 519

U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574. In Old Chief, the United States

Supreme Court held that it was an abuse of the trial court’s discretion to admit the



                                         -35-
Case No. 1-09-01


judgment record of the defendant’s prior conviction into evidence solely for

purposes of proving the element of a prior conviction when the defendant had

offered to stipulate to its existence.               Sanders acknowledges that it is unclear

whether Old Chief is applicable in Ohio, but because of this uncertainty, he asks

this Court to find that a failure to offer a stipulation as to a prior conviction

amounts to an ineffective assistance of counsel.1

         {¶62} We decline to address whether a trial counsel’s failure to stipulate to

a defendant’s prior conviction when it is an element of an offense is unreasonable

or deficient under the circumstances. We find that it is unnecessary to discuss the

implications of Old Chief because either way Sanders has not demonstrated that he

was prejudiced by his trial counsel’s conduct nor do we believe that he could

establish that he was prejudiced by his trial counsel’s conduct. In light of the

evidence discussed in the manifest weight discussion above and given the strength

of the State’s case against Sanders, we do not believe that the outcome of the trial

would have been different, and our confidence in the outcome has not been

undermined by Sanders’ allegation of ineffective assistance. Bradley, 42 Ohio



1
  See State v. Hatfield, 11th Dist. No. 2006-A-0033, 2007-Ohio-7130, ¶148 (applying the holding of Old
Chief and finding the trial court abused its discretion by overruling the defense’s motion to stipulate to the
defendant’s prior licensing suspension); State v. Simms, 1st Dist. Nos. C 030138, C 030211, 2004-Ohio-
652, ¶7 (stating that if the criminal charge alone had been sufficient to prove the elements of retaliation,
then a stipulation might have been appropriate to avoid any undue prejudice and the holding of Old Chief
would have been applicable); State v. Kole (June 28, 2000), 9th Dist. No. 98CA007116, at *4, overruled on
other grounds by State v. Kole (2001), 92 Ohio St.3d 303, 750 N.E.2d 148 (finding Old Chief
distinguishable and not applying its holding to the admission of defendant’s prior criminal record).


                                                    -36-
Case No. 1-09-01


St.3d at 142; Strickland, 466 U.S. at 694.

       {¶63} Sanders’ third assignment of error is, therefore, overruled.

       {¶64} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI, J., concurs.

/jlr



ROGERS, J., Concurring Separately.

       {¶65} I fully concur with the majority on the first and fifth assignments of

error, and I concur with the result on the second and third assignments of error. I

would find them to be moot since the defendant testified as to all his prior

convictions, not just the prior conviction that caused his disability. I do believe

that a trial court should not only instruct the jury as to those matters for which the

prior convictions may be considered (credibility and disability in this case), but

also instruct the jury explicitly as to issues on which prior convictions may not be

considered (to demonstrate that the defendant acted in conformity with his conduct

in prior bad acts, etc.).

       {¶66} As to the fourth assignment of error, I would find that there was

prosecutorial misconduct. However, I would find that misconduct to be harmless



                                        -37-
Case No. 1-09-01


in this case. It is not clear why the issue of an alleged threat against an alleged

potential witness was ever allowed to be presented in this case. It was clearly

hearsay and highly prejudicial. That being said, defense counsel aggravated the

situation and invited some error by commenting on the State’s failure to call that

alleged witness during closing argument. The prosecutor then committed the most

egregious act by further comment when she speculated on what the attitude of the

alleged witness might be if he were required to appear, and then stated: “I’d be

scared too.” (Trial tr., vol. II, p. 326). While the trial court suggested to the jury

that these comments were not evidence, the jury was not explicitly instructed to

disregard the comments. I do not believe that the jury would know that the

prosecutor’s statements as to her personal feelings were improper and irrelevant

without being specifically instructed to disregard them by the trial court.

However, the standard for reversal on prosecutorial misconduct is very high. In

this particular case, I cannot find that the result would have been different without

the prosecutorial misconduct, and I must, therefore, find the error to be harmless.

/jlr




                                        -38-
