[Cite as State v. Moses, 2018-Ohio-356.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )            CASE NO. 16 MA 0006
V.                                                  )
                                                    )                  OPINION
LIONEL MOSES,                                       )
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 2014 CR 871

JUDGMENT:                                           Reversed and Remanded
                                                    Conviction vacated

APPEARANCES:
For Plaintiff-Appellee                              Paul Gains
                                                    Prosecutor
                                                    Ralph M. Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman St., 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant                             Attorney Lynn Maro
                                                    7081 West Boulevard #4
                                                    Youngstown, Ohio 44512

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: January 26, 2018
[Cite as State v. Moses, 2018-Ohio-356.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Lionel Moses, appeals from a Mahoning County
Court of Common Pleas Court judgment convicting him of three counts of trafficking
in drugs in violation of R.C. 2925.03(A)(1)(C)(6)(e), felonies of the second degree,
following a jury trial.
        {¶2}     This case revolves around the plaintiff-appellee’s, the State of Ohio,
use of a confidential informant, Anthony West (West). West was arrested by the
Mahoning Valley Law Enforcement Drug Task Force (Task Force) and indicted on
numerous charges including drug trafficking and possession. After West was
indicted, he agreed to cooperate with the Task Force in certain investigations in
exchange for a shorter prison sentence.
        {¶3}     West provided the Task Force with a list of individuals he believed he
could purchase drugs from. This list included appellant. As part of West’s cooperation
with the Task Force’s investigation, West was to arrange a series of drug buys with
appellant and wear video and audio recording equipment during the drug buys with
appellant.
        {¶4}     There were three meetings between West and appellant: October 21,
2013, October 28, 2013, and November 18, 2013. All of these meetings took place at
a house located in Youngstown, Ohio. During all of these meetings, West went into
the house and came out with heroin in his possession. The video and audio
recording devices that were planted on West were working during the October 21,
2013 transaction. However, the video was not working during the other two
transactions. In all of the video and audio recordings, appellant was never seen
possessing heroin or saying the word heroin.
        {¶5}     West asserted that he obtained the heroin from appellant in all three
meetings at the house. The Ohio Bureau of Criminal Identification and Investigation
(BCI) confirmed that the substances West obtained were in fact heroin. As a result,
the Task Force arrested appellant and charged him with three counts of drug
trafficking.
        {¶6}     At trial, the state called multiple members of the Task Force to testify.
Notably for this appeal, the state called Officer Patton. Officer Patton testified on
                                                                                -2-


direct examination that West had successfully helped in other cases and that West
was “credible.” The state also admitted several pieces of evidence including, but not
limited to: the video recording from West’s transactions, still photographs from the
video recordings, and text messages West received from “Pee Wee.” Appellant
exercised his right to not testify at trial and called no other witnesses.
       {¶7}   During the state’s rebuttal closing argument, the prosecuting attorney
made the following remarks:

              Ladies and gentlemen, what you just witnessed from the defense
       is trying to force doubt into a situation where there is no doubt.
              ***
              So what do they do? Well, I will just make something up during
       closing arguments and hopefully trick the jury into thinking, yeah, there
       should have been something. You have the guy who made it. Question
       him. You can’t because it’s indisputable what happened. So what do we
       do? Well, we can’t attack the facts. We can’t attack the law, so we’ll
       stipulate to the drugs. Of course, you’re going to stipulate to the drugs
       because they’re drugs. Otherwise we have to parade three scientists in
       to say, yeah, those are drugs. Okay?
              So what do you do? It’s what the defense has done the whole
       time. Let’s attack Anthony [West].

(Tr. 494-496).

       {¶8}   The prosecuting attorney also made this remark during his rebuttal
closing argument:

       But I go home to my wife and my three kids, and I think of what would
       happen if I didn’t do that, if these fine officers didn’t do that. We would
       have drug dealers galore out there doing their deeds, putting poison on
       our streets. That’s what we would have. It is an unsavory business, but
       what’s the alternative? We let drug dealers go free putting this crap on
                                                                                -3-


       our streets and in the hands of our children, our friends, our families?
       No. That’s not acceptable.

(Tr. 497-498).
       {¶9}   The prosecuting attorney also began to argue that a jury does not hear
about a person’s criminal record until they take the stand. Noting that appellant did
not take the stand, appellant’s counsel objected. The trial court sustained the
objection and instructed the jury to disregard that particular remark.
       {¶10} After closing arguments, the trial court read its instructions of law to the
jury. Appellant requested that the trial court read to the jury an instruction on
accomplice testimony. The purpose of the instruction is to inform the jury that when
an accomplice is testifying, they are doing so because they have a special motive to
testify in a particular manner. The trial court denied this request. Ultimately, the jury
returned guilty verdicts on all counts.
       {¶11} At the sentencing hearing, the trial court sentenced appellant to six
years of incarceration on count one, three years of incarceration on count two, and
three years of incarceration on count three for a total of twelve years of incarceration.
The trial court ordered that these sentences were to run consecutively. The state
then requested that the trial court make the necessary findings for consecutive
sentences pursuant to R.C. 2929.14 but the trial court refused. The trial court issued
its judgment entry regarding appellant’s sentence on January 6, 2016. Appellant
timely filed this appeal on January 13, 2016. Appellant now raises six assignments of
error. As explained below, only appellant’s first assignment of error will be addressed.
       {¶12} Appellant’s first assignment of error states:

              APPELLANT WAS DENIED A FAIR TRIAL WHEN THE POLICE
       IMPROPERLY VOUCHED FOR THE CONFIDENTIAL INFORMANT’S
       CREDIBILITY IN VIOLATION OF THE FOURTEENTH AMENDMENT
       TO THE UNITED STATES CONSTITUTION AND ARTICLE 1,
       SECTIONS 1, 10, AND 16 OF THE OHIO CONSTITUTION.
                                                                                -4-


       {¶13} Appellant argues that Officer Patton inappropriately bolstered West’s
credibility by stating on direct examination that West was “credible.” Appellant
contends that this is inappropriate because Officer Patton made a judgment on
West’s credibility as a witness which is the sole responsibility of the jury.
       {¶14} It appears from the context of appellant’s brief he is alleging that the
state engaged in prosecutorial misconduct by asking a witness to potentially assess
the credibility of another witness. The test for prosecutorial misconduct is whether the
remarks were improper and, if so, whether the remarks prejudicially affected the
accused’s substantial rights. State v. Twyford, 94 Ohio St.3d 340, 2002-Ohio-894,
763 N.E.2d 122. The touchstone of this analysis “is the fairness of the trial, not the
culpability of the prosecutor.” Id. quoting Smith v. Phillips, 495 U.S. 209, 102 S.Ct.
940 (1982).
       {¶15} The jury is the sole judge of the credibility of a witness. State v. Swiger,
5 Ohio St.2d 151, 156, 214 N.E.2d 417 (1966). Generally, the opinion of a witness as
to whether another witness is being truthful is inadmissible. State v. Persohn, 7th
Dist. No. 11 CO 37, 2012-Ohio-6091, ¶ 68 citing State v. Boston, 46 Ohio St.3d 108,
128, 545 N.E.2d 1220 (1989) (overruled on other grounds).
       {¶16} The exact passage that is the basis of this assignment of error appears
in the direct examination of Officer Patton, one of the officers of the Task Force. The
passage is:

       Q      Officer Patton, you indicated that you had worked with Anthony
       [West]. Did you find him to be credible during the time that he worked
       with us?
       A      Yes.
       Q      Now, let me go back to you begin this investigation. Anthony
       agrees to cooperate. Defense counsel brought up some other instances
       of wrongdoings by him. Did we attempt to help him out in any way in
       any of that stuff that happened aside from our case?
       A      No.
                                                                                -5-


(Tr. 420-421).
       {¶17} Appellant objected to this line of questioning but the trial court overruled
the objection. (Tr. 420). Appellant contends that these questions and answers are an
inappropriate opinion for a witness to make regarding the credibility of a witness. But
the state argues that these questions and answers are analogous to a recent issue
presented to the Fourth District.
       {¶18} In State v. Smith, 4th Dist. No. 15CA3686, 2016-Ohio-5062, the Fourth
District ruled that the following testimony from a state’s witness on redirect about said
witness was not improper vouching for the witness’ credibility:

       [Prosecutor]: You’ve testified against heroin traffickers in this county
       before?
       [Schuman]: Yes.
       [Prosecutor]: The one out here where they had to stop traffic and
       arrested three of them coming from Cincinnati?
       [Schuman]: Yes.
       [Prosecutor]: And you testified in that case?
       [Schuman]: Yes.
       [Prosecutor]: Okay. Judge Harcha made a ruling in that case about your
       credibility, didn’t he?
       [Schuman]: Yes, he did.
       [Prosecutor]: And he said you were a most credible witness?
       [Schuman]: Yes, he did.

State v. Smith, at ¶ 51.
       {¶19}     The Fourth District reasoned that this line of questioning did not
amount to prosecutorial misconduct because the prosecutor did not express a
personal voucher for the witness’ credibility. Id. at ¶ 55.
       {¶20}     This District has the same or a similar rule to that of the Fourth
District’s. “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.
                                                                                 -6-


Rector, 7th Dist. No. 01 AP 758, 2002-Ohio-7442, ¶ 58 quoting State v. Williams, 79
Ohio St.3d 1, 679 N.E.2d 646 (1997). In order for the prosecutor to “vouch” for the
witness, the prosecutor’s statements must imply knowledge of facts outside the
record or place the prosecutor’s personal credibility in issue. Id. citing State v. Keene,
81 Ohio St.3d 646, 693 N.E.2d 246 (1998).
       {¶21}   Even though the facts in the case at bar are somewhat different from
those in Smith and Rector, the same rule applies. In this case, the prosecuting
attorney aligned himself with the police. Specifically, the prosecutor asked Officer
Patton if he found West to be credible “during the time he worked with us?” (Tr. 420).
Additionally, the prosecutor asked Officer Patton, “Did we attempt to help him out in
any way in any of that stuff that happened aside from our case?” (Tr. 421). The words
“us,” “we,” and “our” when spoken by the prosecuting attorney to Officer Patton
during trial indicates that the prosecutor’s office and the police share the same
viewpoints regarding the evidence, including the credibility of West. With the
prosecution aligning itself with the police openly and on the record and Officer Patton
assessing West as a “credible” witness, the prosecution was essentially vouching for
the witness. There is no indication in the record of corroboration as to why West was
a credible informant.
       {¶22}   Additionally, the Sixth Circuit held that “[b]olstering occurs when the
prosecutor implies that the witness’s testimony is corroborated by evidence known by
the government but not known by a jury. A prosecutor may ask a government agent
or other witnesses whether he was able to corroborate what he learned in the
criminal investigation. However, if the prosecutor pursues this line of questioning, she
must also draw out testimony explaining how the information was corroborated and
where it originated.” United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999). In
this case, there is no corroboration of how exactly West was deemed credible by
Patton other than West did prior work for police and Patton deemed him credible.
Furthermore, the Sixth Circuit also held that a defendant is denied a fair trial when
testimony from a police officer regarding an informant’s “reliability” in other cases is
offered. Cooper v. Sowders, 837 F.2d 284, 288 (6th Cir. 1988).
                                                                               -7-


      {¶23}    Similar rulings have been used in Ohio as well. The First District held
that the opinion of a witness about another witness’ truthfulness is inadmissible and
the problem of such testimony is only compounded when the opinion is from a police
officer as jurors are more likely to perceive police officers as expert witnesses. State
v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist. 2001). Ultimately, the trial
court’s decision to allow testimony regarding West’s credibility as an informant was
error. The remedy for prosecutorial misconduct is a new trial. State v. McCleod, 7th
Dist. No. 00 JE 8, 2001-Ohio-3480 citing State v. Kennan, 81 Ohio St.3d 133, 1998-
Ohio-459, 689 N.E.2d 929.
      {¶24}    Accordingly, appellant’s first assignment of error has merit and is
sustained.
      {¶25} Appellant’s remaining assignments of error are as follows:
                             Second Assignment of Error
              APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF
      THE PROSECUTOR’S COMMENTS DURING VOIR DIRE AND
      REBUTTAL       CLOSING      ARGUMENT        IN    VIOLATION     OF    THE
      FOURTEENTH          AMENDMENT         TO     THE       UNITED    STATES
      CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10, AND 16 OF THE
      OHIO CONSTITUTION.

                           Third Assignment of Error
              THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
      GIVE          REQUESTED           JURY           INSTRUCTIONS          ON
      ACCOMPLICE/INFORMANT             TESTIMONY,           AND   DENIED    MR.
      MOSES’ RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE
      UNITED STATES CONSTITUTION, AND OHIO CONSTITUTION
      ARTICLE 1, SECTION 1, 10, AND 16.

                              Fourth Assignment of Error
              THE    TRIAL     COURT       ERRED       IN    ADMITTING      THE
      RECORDINGS FROM THE WIRE WORN BY THE CONFIDENTIAL
                                                                                 -8-


       INFORMANT, AND A DVD OF STILL PHOTOGRAPHS AND TEXT
       MESSAGES WERE NOT PROPERLY AUTHENTICATED THEREBY
       DEPRIVING APPELLANT THE RIGHT TO A FAIR TRIAL IN
       VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED
       STATES CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10, AND 16
       OF THE OHIO CONSTITUTION.

                               Fifth Assignment of Error
              DEFENDANT’S        SENTENCE         IS    CONTRARY       TO    LAW
       BECAUSE       THE     TRIAL     COURT       IMPOSED       CONSECUTIVE
       SENTENCES WITHOUT MAKING THE NECESSARY FINDINGS
       PURSUANT TO R.C. 2929.14.

                               Sixth Assignment of Error
              APPELLANT’S CONVICTION AND SENTENCE VIOLATE THE
       FOURTEENTH          AMENDMENT         TO        THE   UNITED      STATES
       CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO
       CONSTITUTION AS THE              CONVICTION WAS           AGAINST     THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶26} Based on our resolution of appellant’s first assignment of error,
appellant’s second, third, fourth, fifth, and sixth assignments of error are moot.
       {¶27} For the reasons stated above, appellant’s conviction is hereby vacated.
The trial court’s judgment is reversed and this matter is remanded for a new trial.

Waite, J., concurs
DeGenaro, J., concurs
