         [Cite as State v. Ruff, 2013-Ohio-5892.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-120844
                                                        TRIAL NO. B-1007073
        Plaintiff-Appellee,                         :
                                                            O P I N I O N.
  vs.                                               :

LAMOUR RUFF,                                        :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 24, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. Bicknell, for Defendant-Appellant.




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




D E W INE , Judge.

       {¶1}     Lamour Ruff appeals his convictions for aggravated robbery with a

specification, carrying concealed weapons, and having a weapon while under a

disability. He contends that the trial court should have suppressed a gun found on him

during a search, that he was denied a fair trial due to prosecutorial misconduct, and that

the trial court should have severed the robbery charges from the weapons charges. We

conclude that the trial court properly overruled his motion to suppress and that Mr. Ruff

waived his objection to not severing the charges. We also conclude that, while certain

comments made by the assistant prosecutor were improper, Mr. Ruff was not denied a

fair trial. We therefore affirm the judgment of the trial court.

                                             I.

       {¶2}     Mr. Ruff was indicted for two separate incidents. The state alleged that

on September 21, 2011, Mr. Ruff robbed Deboragh Lynn Evans and Ronald Sanders at

gunpoint. It also alleged that on October 17, Mr. Ruff was found to be carrying a

concealed weapon and that he was under a disability.

       {¶3}     Prior to trial, Mr. Ruff moved to suppress testimony about

identifications that Ms. Evans and Mr. Sanders made after they were shown a

photograph array and also to suppress evidence found on Mr. Ruff following a police

stop. The trial court granted the motion with respect to the identification testimony but

denied it with respect to the stop.   The state appealed the trial court’s decision on the

photo identification. We reversed the court’s judgment and remanded the case. See

State v. Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio-1910.

       {¶4}     On remand, the following evidence was adduced at a jury trial. On

September 21, 2011, around 8:00 p.m., Ms. Evans and Mr. Sanders were walking from a




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hair salon in downtown Cincinnati to a parking garage. A man on a bicycle rode past

them. Later, while they were standing near Ms. Evans’s car, the man on the bike

approached, pointed a gun at them, and demanded their phones, money and jewelry.

Both victims testified that they had gotten a good look at the man during the robbery.

          {¶5}   A few weeks later, on October 17 around midnight, Officer Alicia

Bruewer was patrolling the Over-the-Rhine area of Cincinnati. Officer Bruewer saw a

man dressed in all black riding his bicycle with no lights on the sidewalk in violation of

Cincinnati Municipal Code 506-5 and R.C. 4511.56. Officer Bruewer testified that based

on her experience, she believed that the man, later identified as Mr. Ruff, might be

dealing drugs. As the police officer watched, Mr. Ruff stopped and handed his bike off to

another person. Because she was alone in her police cruiser, she asked for backup

before stopping Mr. Ruff to cite him for the bicycle violation. When she heard that a

two-man unit would be at the scene shortly, she stopped Mr. Ruff and asked him to sit

on the step until her backup came. After the other officers arrived, Officer Bruewer

asked Mr. Ruff for his identification, and he provided it. She ran Mr. Ruff’s information

through the computer in her cruiser and determined that he did not have any open

warrants.

          {¶6}   Because he was acting nervous, had “shifty eyes,” and seemed to be

sitting in a way as to conceal something, Officer Bruewer told Mr. Ruff that the police

officers were going to pat him down before she issued the bicycle citation to him. Mr.

Ruff threw his hands in the air, became agitated, and reached for his belt area, so Officer

Branden Mentz handcuffed him. When Office Mentz patted him down, he found a gun

in Mr. Ruff’s back right pocket. Mr. Ruff was arrested and informed of his Miranda

rights.




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       {¶7}     Officer Craig Ball, who had been investigating the parking-garage

robbery, saw the report of Mr. Ruff’s arrest. After realizing that Mr. Ruff had been riding

a bike and had approximately the same build as the suspect in the robbery, Officer Ball

created a photograph array that contained Mr. Ruff’s picture. The array was shown to

Mr. Sanders and Ms. Evans on separate occasions, and both identified Mr. Ruff as the

man who had robbed them. They identified him again at trial as the robber.

       {¶8}     The jury found Mr. Ruff guilty of two counts of aggravated robbery, two

counts of robbery, one count of carrying a concealed weapon and one count of having a

weapon under a disability.      The trial court merged the robbery counts with the

aggravated robbery counts and sentenced him accordingly.

                                            II.

       {¶9}     In his first assignment of error, Mr. Ruff asserts that the trial court

erred when it refused to suppress the gun found on him during the search. He also

argues that statements made by him following the discovery of the gun should have

been suppressed as fruits of the poisonous tree.

       {¶10}    Mr. Ruff does not dispute that Officer Bruewer had probable cause to

stop him for the bicycle violation.         Rather, he contends that the stop was

unreasonably prolonged.

       {¶11}    The trial court found Officer Bruewer’s testimony to be credible. She

testified that because of the neighborhood that she was in and her suspicion that Mr.

Ruff was dealing drugs, she was concerned about her safety from the beginning of

the encounter. Because of this concern, she called for backup before approaching

Mr. Ruff.     Mr. Ruff’s behavior after she stopped him did not allay her safety

concerns. Rather, he acted nervous and had “shifty eyes.” He sat in a way that led

Officer Bruewer to believe he was concealing something. The court found that based



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upon the totality of the circumstances, the Terry pat down was proper. See Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Having reviewed the record,

we conclude that the court’s findings were supported by competent, credible

evidence. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. In light of the legitimate safety concerns, Officer Bruewer’s decision to delay

citing Mr. Ruff until her backup arrived was not unreasonable. The trial court

properly denied the motion to suppress. The first assignment of error is overruled.

         {¶12}   Mr. Ruff’s second assignment of error is that he was deprived of a fair

trial due to prosecutorial misconduct. Two of the alleged incidents of misconduct

were not objected to by Mr. Ruff. We thus review them for plain error. Crim.R.

52(B).

         {¶13}   In the first instance, the prosecuting attorney stated during his

opening that the gun that had been taken from Mr. Ruff on October 17 was the same

gun that had been pointed at Ms. Evans and Mr. Sanders. He repeated his assertion

during his closing argument when he stated, “I know [the gun’s] identical.” The

evidence presented in trial did not establish that the gun was the same one, but there

was testimony that the gun recovered from Mr. Ruff did look like the one used in the

robbery. Moreover, even if we assume the comments were improper, we are unable

to conclude that the result of the trial would have been different had the comments

not been made. See State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d

1240. Ms. Evans and Mr. Sanders consistently testified that Mr. Ruff had pointed a

gun at them and threatened to shoot them if they did not comply with his demands.

Likewise, Officer Mentz testified that he removed a gun that had been concealed

from Mr. Ruff’s person. Whether it was the same gun was inconsequential to the

proof of the individual offenses.



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       {¶14}   Mr. Ruff contends that the assistant prosecuting attorney also

commented impermissibly on the credibility of the state’s witnesses. During his

opening statement, the assistant prosecuting attorney, referring to Mr. Sanders and

Ms. Evans, improperly stated, “[T]hey’re good witnesses; they’re credible witnesses.”

Again, no objection was made by Mr. Ruff.            We conclude that no plain error

occurred. The jury had the opportunity to determine the credibility of the witnesses.

The assistant prosecutor’s comments were insignificant compared to the testimony

of Mr. Sanders and Ms. Evans at trial.

       {¶15}   Most troubling is a comment made by the assistant prosecuting

attorney to which Mr. Ruff did object.          During closing argument, the assistant

prosecutor stated, “This is the defense. There’s been no other evidence that I am

aware of. There have been no witnesses put on. There’s no alibi witness.” The trial

court sustained Mr. Ruff’s objection and immediately instructed the jury:

        [I] need to tell you something now. The defendant does not have to do

       anything. The defendant doesn’t have to present a defense, doesn’t

       have to put on any witnesses, doesn’t have to have alibi witnesses,

       doesn’t have to have exhibits. The defendant does not have to do

       anything. The burden of proof is upon the state. So please disregard

       the comments by the prosecutor.

During jury instructions, the court reiterated, “There is no necessity or requirement

that the defendant present any evidence. The duty of proof rests entirely on the State

of Ohio.”

       {¶16}   “A jury is presumed to follow the instructions given to it by the trial

judge.” State v. Loza, 71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994). We conclude

that given the trial court’s instruction to the jury not only at the time of the statement



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but during jury instructions, Mr. Ruff’s substantial rights were not prejudiced by the

assistant prosecuting attorney’s misconduct. See State v. Jones, 135 Ohio St.3d 10,

2012-Ohio-5677, 984 N.E.2d 948, ¶ 200. We further conclude that Mr. Ruff was not

unfairly prejudiced by any cumulative effect of the prosecutor’s improper statements.

The second assignment of error is overruled.

       {¶17}   The final assignment of error is that the trial court erred when it

failed to sever the robbery charges stemming from the September 21 incident from

the weapons charges stemming from the October 17 stop. We are not persuaded.

       {¶18}   While the state’s appeal of the trial court’s decision on the motion to

suppress was pending, the trial court asked Mr. Ruff if he wanted to move forward on

the weapon charges, which were not impacted by the court’s decision on the

photograph array. Mr. Ruff’s attorney stated that he would rather keep the charges

together. In light of his request to try the offenses together, Mr. Ruff cannot now

claim that the court abused its discretion by not severing the charges. The third

assignment of error is overruled. We therefore affirm the judgment of the trial court.

                                                                  Judgment affirmed.


H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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