         [Cite as State v. Jordan, 2012-Ohio-3793.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-110833
                                                          TRIAL NO. B-1003262
        Plaintiff-Appellee,                           :

  vs.                                                 :     O P I N I O N.

RUBEN JORDAN,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 24, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michele L. Barry, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




H ILDEBRANDT , Presiding Judge.


       {¶1}        Defendant-appellant Ruben Jordan appeals the judgment of the

Hamilton County Court of Common Pleas convicting him of aggravated murder with

a firearm specification and possessing a weapon while under a disability. He was

convicted after a jury trial.

                                The Murder of Victor Davis

       {¶2}        In October 2008, Brian Austin was murdered.           Victor Davis

identified Jordan’s son, Kareem Gilbert, as the perpetrator.

       {¶3}        After he had identified Gilbert as Austin’s killer, Davis told the

police that he feared for his life because of threats from Gilbert’s family. On October

31, 2008, Davis’s fears were confirmed, as he was fatally shot outside of his

apartment building.

       {¶4}        Gilbert was indicted for the murders of both Austin and Davis. But

in May 2010, Gilbert gave a recorded statement to police and prosecutors in which

he implicated Jordan as Davis’s assailant. As part of a written plea arrangement,

Gilbert agreed to plead guilty to reduced charges for the killing of Austin in exchange

for his testimony against Jordan.

       {¶5}        The case against Jordan proceeded to trial in January 2011. At

trial, the state presented the testimony of Dean Shade, a resident of Davis’s

apartment complex. Shade testified that on the night of Davis’s murder, he had

heard shots and had looked out of his window. He stated that he had seen a man

who matched Jordan’s general physical description walking from the scene of the

shooting.

       {¶6}        Kenneth Heard was a drug dealer from whom Jordan had regularly

bought crack cocaine. Heard testified that, after the murder of Davis, Jordan had


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confessed to him that he had killed Davis and that he had let Gilbert take the blame

for the murder.

        {¶7}         Criminalist Paul Glindmeyer responded to the scene immediately

after Davis had been shot, and he noticed a quantity of what appeared to be fresh

saliva near Davis’s body. Glindmeyer testified it was a custom among some people to

mark their “turf” by spitting on the street or sidewalk. He took a sample of the saliva

and submitted it for deoxyribonucleic acid (DNA) testing. The testing revealed that

the DNA in the saliva matched that of Jordan.

        {¶8}         Kareem Gilbert took the stand and immediately repudiated his

prior statement implicating Jordan.         Although he admitted having made the

statement, he contended that it had been fabricated and that neither he nor Jordan

had been present at the scene of Davis’s murder. The trial court admitted the

recording of the statement as well as a transcript into evidence with the limiting

instruction that the jury was to consider the statement for impeachment purposes

only.

        {¶9}         Jordan offered the testimony of his fiancée, Leshuande Ramsey,

who testified that both Jordan and Gilbert had been at home with her the entire

night of Davis’s murder. Jordan also called one of the detectives who had testified

for the state and questioned him about the possibility that Gilbert’s brother might

have killed Davis.

        {¶10}        The jury found Jordan guilty, and the trial court sentenced him to

life imprisonment with parole eligibility after 25 years for aggravated murder, a

consecutive three-year term of imprisonment for the firearm specification, and

another consecutive two-year term for possessing a weapon while under a disability.

The trial court denied Jordan’s motion for a new trial under Crim.R. 33.




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                           Timeliness of Jordan’s Appeal

       {¶11}      Before we discuss Jordan’s assignments of error, we address the

state’s contention regarding this court’s jurisdiction to review the conviction. The

state maintains that because Jordan did not file his notice of appeal until more than

nine months after the sentence had been journalized, this court has jurisdiction to

review only the trial court’s denial of Jordan’s motion for a new trial.

       {¶12}      We find no merit in the state’s argument. Jordan’s motion for a

new trial stayed the time for appealing the conviction until 30 days after the trial

court’s ruling on the motion. App.R. 4. See also State v. Klein, 1st Dist. No. C-

970788, 1998 Ohio App. LEXIS 5757 (Dec. 4, 1998). Thus, Jordan’s notice of appeal

was timely, and this court has jurisdiction to review the conviction.

                    Admissibility of Kareem Gilbert’s Statement

       {¶13}      In his first assignment of error, Jordan argues that the trial court

erred in admitting extrinsic evidence of Kareem Gilbert’s prior statement implicating

Jordan in the murder of Davis. But because Jordan did not object to the admission

of the statement, we review the record for plain error.          Under the plain-error

standard, we must affirm the conviction unless, but for the allegedly inadmissible

evidence, the outcome of the trial would have been different. See State v. Lukacs,

188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 34 (1st Dist.).

       {¶14}      Evid.R. 613 provides for the admissibility of a witness’s prior

inconsistent statement for the purpose of impeaching the witness’s credibility. See

State v. Carusone, 1st Dist. No. C-010681, 2003-Ohio-1018. But extrinsic evidence

of the prior statement is admissible only “[w]hen a witness denies making a prior

statement, or states that he is unable to recall the prior statement.” Id. at ¶ 37, citing

State v. Davenport, 1st Dist. No. C-980516, 1999 Ohio App. LEXIS 3469 (July 30,




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1999); see also State v. Johnson, 10 Ohio App.3d 14, 17, 460 N.E.2d 625 (10th

Dist.1983).

       {¶15}      Thus, because Gilbert admitted having made the prior statement,

extrinsic evidence of the statement was not admissible. Nonetheless, the trial court

did not commit plain error. In light of the limiting instruction, we must presume

that the jury did not consider the prior statement as substantive evidence. And

because of the other evidence adduced by the state—including eyewitness testimony,

the statement of Jordan, and forensic evidence gathered at the crime scene—we

cannot say that the outcome of the trial would have been different absent the error.

Moreover, as Jordan himself concedes, the state could have properly engaged in a

line-by-line cross-examination of Gilbert with respect to the prior statement, and the

jury would have had been provided the identical evidence. See State v. Hill, 2d Dist.

No. 20028, 2004-Ohio-2048, ¶ 41. Under these circumstances, Jordan was not

deprived of a fair trial, and we overrule the first assignment of error.

                              Prosecutorial Misconduct

       {¶16}      In his second, third, and fourth assignments of error, Jordan

claims that he was deprived of a fair trial because of prosecutorial misconduct. We

address these assignments together.

       {¶17}      The test for prosecutorial misconduct is whether the prosecutor’s

questions or remarks were improper, and, if so, whether they prejudicially affected

the defendant’s substantial rights. State v. Glenn, 1st Dist. No. C-090205, 2011-

Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984)

and State v. Canyon, 1st Dist. Nos. C-070729, C-070730, and C-070731, 2009-Ohio-

1263, ¶ 17.




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       {¶18}      Jordan first argues that the assistant prosecutor improperly invited

the jury to consider Gilbert’s prior statement as substantive evidence rather than

mere impeachment.

       {¶19}      We agree that a number of the assistant prosecutor’s statements

tended to suggest that the jury could consider the prior statement for its truth.

Nonetheless, we must presume that the jury followed the trial court’s instruction that

the prior statement was to be considered only for purposes of impeachment. See

State v. Loza, 71 Ohio St.3d 61, 79, 641 N.E.2d 1082 (1994). Thus, we find no

prejudice to have resulted from the asserted misconduct.

       {¶20}      Jordan next argues that the assistant prosecutor improperly

vouched for the credibility of Gilbert’s out-of-court statement when he emphasized

his own role in eliciting the statement. In this regard, the assistant prosecutor stated

the following;

       I’m not trying to toot my own horn, but you got Detective McGuffey and

       Luke and Vaughn and they’re all homicide investigators.           And Ms.

       Shanahan and myself all part of a plea agreement, as you can see that it

       says that. The statement has to be truthful. And as Detective Ballman

       told you, a lot of people want to cooperate with us in investigations, and

       we have to make an independent determination of whether what they

       are saying is true, because we have got a duty, we are officers of the

       court, we are here to see that justice is done.

The prosecutor also emphasized that his and the other interrogators’ techniques

were calculated to reveal the truth, and he noted that the plea agreement included

his signature.

       {¶21}      A prosecutor may elicit testimony that a witness has agreed to tell

the truth as part of a plea agreement. State v. Jackson, 92 Ohio St.3d 436, 448, 751



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N.E.2d 946 (2001). But he may not express his belief or opinion regarding the

credibility of a witness. Id.

       {¶22}       In this case, the assistant prosecutor went beyond merely eliciting

testimony that Gilbert had agreed to tell the truth. He vouched for the truth of the

prior statement and went so far as to take personal credit for its trustworthiness.

Such comments went beyond the limits of proper argument. Still, because of the trial

court’s admonitions about the prior statement, we cannot say that the comments

deprived Jordan of a fair trial.

       {¶23}       Finally, Jordan argues that the state engaged in misconduct by

referring to matters not in evidence.      Specifically, he argues that the assistant

prosecutor improperly alleged that he and Gilbert had formulated a plot to ensure

that they would both be acquitted of Davis’s murder. In closing argument, the

prosecutor made the following remarks:

       Don’t think this was something that had not been thought through.

       The whole thing is that they [Jordan and Gilbert] knew there was

       going to be a jury somewhere down the road, and this is his clear final

       test, his final obstacle is you folks, and we are asking that you not let

       him get past justice by a jury trial in this particular case, because when

       he is found not guilty, I don’t know whether you have heard, it’s a term

       called double jeopardy. And at a later point, if Kareem Gilbert is

       charged with Davis’s homicide, there is nothing to prevent Ruben

       Jordan from coming in here, another jury months and months from

       now and saying, yes, I did do it.          Now that would be pretty

       monumental, and I don’t know if anybody would believe him, but

       double jeopardy prevents him from being tried twice for the same

       crime. So again, this is the kind of plan that you don’t know where it’s



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       going to go, but it’s certainly foreseen that type of thing could happen

       depending on how this thing goes with you folks.

       {¶24}     Once again, we find these comments to be inappropriate.            A

prosecutor may not express his personal beliefs or opinions regarding the guilt of the

accused and may not refer to matters not supported by admissible evidence. State v.

Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990), citing Smith, 14 Ohio St.3d at

14, 470 N.E.2d 883. Here, the state asked the jury to convict Jordan not on the basis

of the evidence, but to prevent Jordan and Gilbert from playing what the prosecutor

referred to as a “grade-school simplistic trick.” Such collusion on the part of Jordan

and Gilbert was not demonstrated by the record, and the comments therefore went

beyond the limits of proper argument.

       {¶25}     Nonetheless, Jordan did not object to these comments about

collusion and therefore must demonstrate that, but for the misconduct, the outcome

of the trial would have been different. State v. Rucker, 1st Dist. No. C-110082, 2012-

Ohio-185, ¶ 20, citing State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997).

In this instance, Jordan has not met his burden. As we have already commented,

there was ample evidence to support the conviction, and we cannot say that the

comments deprived Jordan of a fair trial. But we strongly caution the state that, in a

closer case than the one before us now, such comments could very well result in

reversal. But on the basis of the record before us, we overrule the second, third, and

fourth assignments of error.

       {¶26}     In his fifth assignment of error, Jordan contends that the trial

court erred in failing to provide the jury with a proper limiting instruction

concerning Gilbert’s out-of-court statement. Specifically, he argues that the court

failed to adequately inform the jury that it could consider the statement for

impeachment purposes only and not as substantive evidence. Once again, Jordan



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did not object to the jury instructions, and we therefore review the matter under the

plain-error standard. Crim.R. 30(A); State v. Coley, 93 Ohio St.3d 253, 266, 754

N.E.2d 1129 (2001).

       {¶27}      We find no plain error. The trial court informed the jury that the

“statement was admitted for the sole purpose of impeaching the witness.            The

statement is not testimony and may only be used to evaluate the credibility of the

witness.” This instruction was accurate and fully explained the import of the prior

statement.     Although Jordan contends that the instruction was deficient, he

essentially reiterates his argument that extrinsic evidence of the statement was

simply inadmissible. Having already addressed that argument, we need not do so

again. The fifth assignment of error is overruled.

       {¶28}      Although not separately assigned as error, Jordan makes the

alternative arguments that he was deprived of the effective assistance of trial counsel

and that the trial court erred in overruling his motion for a new trial. We choose to

recast these arguments as the sixth and seventh assignments of error, respectively.

       {¶29}      To establish ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable performance and that prejudice arose from counsel’s performance.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two

and three of the syllabus.

       {¶30}      As we have already noted, trial counsel failed to lodge a number of

objections that were warranted.       As a result, the jury was presented with an

inadmissible out-of-court statement as well as a number of inappropriate comments

on the part of the assistant prosecutor. But counsel’s lapses did not deprive Jordan

of a fair trial, and we accordingly overrule the sixth assignment of error.




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       {¶31}      As for the seventh assignment of error, we review the denial of a

motion for a new trial under an abuse-of-discretion standard. State v. Davis, 1st

Dist. No. C-090220, 2010-Ohio-5125, ¶ 41, citing State v. Schiebel, 55 Ohio St.3d 71,

564 N.E.2d 54 (1990). A new trial cannot be granted on the basis of irregularities

that do not affect the substantial rights of the defendant. Glenn, 2011-Ohio 829, at ¶

88.

       {¶32}      We find no abuse of discretion in the trial court’s denial of the

motion. Although there were irregularities in the proceedings, they did not affect

Jordan’s substantial rights. The evidence produced by the state was such that the

asserted errors cannot be said to have affected the outcome of the proceedings.

Accordingly, we overrule the seventh assignment of error.

                                     Conclusion

       {¶33}      The judgment of the trial court is affirmed.

                                                                 Judgment affirmed.



HENDON and FISCHER, JJ., concur.




Please note:
       The court has recorded its own entry this date.




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