[Cite as State v. Brown, 2013-Ohio-5391.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :

v.                                                :                No. 13AP-164
                                                                 (C.P.C. No. 12CR-986)
Irvin M. Brown,                                   :
                                                              (REGULAR CALENDAR)
                 Defendant-Appellant.             :

                                            D E C I S I O N

                                   Rendered on December 10, 2013


                 Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson,
                 for appellee.

                 R. William Meeks Co., LPA, and David H. Thomas, for
                 appellant.

                  APPEAL from the Franklin County Court of Common Pleas


TYACK, J.
        {¶ 1} Defendant-appellant, Irvin M. Brown ("appellant"), is appealing his
convictions on one count of felonious assault and two counts of kidnapping in the
Franklin County Court of Common Pleas. For the following reasons, we affirm the
judgment of the trial court.
        {¶ 2} Appellant assigns four errors for our consideration:
                     [I.] The prosecuting attorney's remarks during closing
                     arguments constituted prosecutorial misconduct
                     which deprived Appellant of a fair trial in violation of
                     the Fifth and Fourteenth Amendments to the United
                     States Constitution and comparable provisions of the
                     Ohio Constitution.
No. 13AP-164                                                                                2


                   [II.] The Appellant's trial counsel's failure to object to
                   the prosecutor's improper statements during closing
                   arguments deprived him of his rights to a fair trial,
                   effective assistance of counsel, and due process of law
                   as guaranteed by the Fifth, Sixth, and Fourteenth
                   Amendments of the United States Constitution and
                   comparable provisions of the Ohio Constitution.

                   [III.] The trial court erred by overruling Appellant's
                   Criminal Rule 29 Motion for Judgment of Acquittal,
                   as the prosecution failed to offer sufficient evidence to
                   prove beyond a reasonable doubt each and every
                   element of the crimes charged, and thereby deprived
                   Appellant of due process of law as guaranteed by the
                   Fifth and Fourteenth Amendments to the United
                   States Constitution and comparable provisions of the
                   Ohio Constitution.

                   [IV.] The trial court erred and thereby deprived
                   Appellant of due process of law as guaranteed by the
                   Fourteenth Amendment to the United States
                   Constitution and comparable provisions of the Ohio
                   Constitution by finding Appellant guilty of two counts
                   of kidnapping and one count of felonious assault, as
                   the verdicts were against the manifest weight of the
                   evidence.

                            Factual and Procedural History
          {¶ 3} The prosecution presented the following at trial.         In the fall of 2011,
appellant met both Laurika Starks and Andrea Bostic. The women were neighbors who
lived in adjoining units in an apartment complex. Appellant and Starks began to have a
sexual relationship around November 2011. Starks ended the relationship in January
2012 because appellant had issues within himself and he was being argumentative. After
the relationship ended with Starks, appellant began to have a sexual relationship with
Bostic.
          {¶ 4} On February 12, 2012, Bostic asked appellant to leave her apartment and
ended the relationship saying that she did not want him in her house on account of her
kids. Starks then let appellant into her apartment around noon on February 12, because
they were still friends and cordial with one another. Appellant ignored Starks for most of
the day. From about noon until midnight he was focused on a laptop computer and
No. 13AP-164                                                                                3


talking to family. He also communicated with various people on Facebook during this
time. Starks said it was clear he was upset.
       {¶ 5} We cannot tell from the evidentiary record before us whether or not Starks
ever asked appellant to leave before he put a gun in her face. In her testimony at trial,
Starks jumped right to the point where appellant is pointing a gun at her face without any
explanation how the situation escalated. She stated she was terrified and could not leave
because of the gun. Appellant initially pulled the gun around midnight. Starks then tried
to talk him out of her apartment to get him to leave.
       {¶ 6} Starks said that appellant kept playing with the ammunition clip by taking it
in and out of the gun. She testified she was able to take the clip when he put it down and
hide it in the couch. Appellant apparently forced Starks to pray multiple times while
pointing the gun at her, and asked her whether she loved Jesus and if she loved Tupac.
       {¶ 7} When Starks' 10-year-old daughter came partially down the stairs of the
apartment around 2:00 or 2:30 a.m., on February 13, appellant decided to leave, but he
took the gun and the clip with him. Starks locked the door and tried to act as if the
incident never happened. Starks stated she did not think appellant would shoot her and
she did not think that he would shoot Bostic so she was not worried when he finally left.
       {¶ 8} Starks testified she did not hear any arguing between appellant and Bostic
through the walls of the adjoining apartment on the morning of February 13, but thought
she could hear appellant arguing with himself through the walls on other occasions.
Starks testified she next saw appellant at about 8:00 a.m. on February 13, when appellant
was yelling on a cell phone outside.
       {¶ 9} Starks testified the topic of her being detained did not come up with the
police during her initial questioning at the time of appellant's arrest, but she did affirm to
police that Bostic was detained by appellant. Starks stated she just did not want to get
involved. Starks only told the police her entire story about being detained with a gun the
following week.
       {¶ 10} Bostic testified that she was the only one home in the early morning of
February 13, 2012. When Bostic first opened the door for appellant around 2:30 a.m., she
stated he said "I just scared the -- scared the hell out of your neighbor." (Tr. Vol. I, at
142.) When asked why, appellant responded "I just put the gun to her head." (Tr. Vol. I,
No. 13AP-164                                                                                4


at 143.) Bostic testified that appellant fired a warning shot, to see if anybody would come.
Starks however never testified to hearing this warning shot which was supposed to have
happened fairly soon after appellant arrived at Bostic's apartment after he just left Starks.
       {¶ 11} Bostic's testimony is clear that appellant put the gun to her chin, made her
pray, repent, and state bible verses while he called her dumb bitch and other names.
Bostic was shot in the ankle when she was sitting on the couch with her face covered by
her hands. Appellant was standing a little distance away from her with the gun pointed at
her when he shot her. Once Bostic was shot, she covered her legs with a blanket because
she did not believe appellant was aware that she was injured. For two hours after Bostic
was shot and covered with the blanket, appellant was torturing her, hitting her, and
making her state bible verses.
       {¶ 12} When appellant discovered that Bostic had been shot, he said that he did
not mean to shoot her, but continued to ramble and ask bible questions stating "This time
you better answer this or else I'm gonna blow your damn head off." (Tr. Vol. I, at 166.)
After appellant saw that Bostic was hurt, he let her go to the bathroom and then tried to
put a towel around her ankle.
       {¶ 13} Bostic was able to get away at one point and went to her child's bedroom,
intending to jump out the window. She saw her neighbor TJ going to work. TJ saw her
and asked what was wrong. Ms. Bostic either said help me or he shot me. Appellant
returned with the gun at that moment and banged on the door demanding to be let in.
       {¶ 14} When appellant saw her at the window, he asked her if she was going to
jump. Bostic replied that she thought she saw her kids but it was the neighbor TJ.
Apparently, at this point, appellant went to the window and said something to TJ after
putting the gun down on the child's bed.
       {¶ 15} As appellant was having a conversation with TJ, Bostic hid the gun under
some blankets on the bed and went downstairs and then outside. TJ let her go to his
house and stated he would wait outside for appellant. Once Bostic locked TJ's front door
behind her, she called her children's father, Frasier, who was already late in bringing the
kids home to Bostic's apartment. Frasier ended up calling the police who arrived within a
few minutes. At trial, Bostic denied stating to medical personnel that the shooting was an
accident.
No. 13AP-164                                                                             5


       {¶ 16} Appellant sent Ms. Bostic letters after the incident. On February 17, 2012,
appellant wrote that the devil took his mind that there were no drugs involved. He also
wrote that he was sorry.
       {¶ 17} On March 29, appellant asked Bostic to forgive him and marry him. He
promised to get help. On March 30, 2012, appellant wrote that he did not mean to shoot
Bostic and that he was wrong for his actions.
       {¶ 18} As indicated earlier, appellant was indicted on two counts of kidnapping in
violation of R.C. 2905.01 and one count of felonious assault in violation of R.C. 2903.11.
On January 29, 2013, a three-day jury trial commenced in which appellant was convicted
on all counts. Appellant timely filed a notice of appeal on February 5, 2013.
       There was No Prosecutorial Misconduct in the Closing Argument
       {¶ 19} The first assignment of error argues that the prosecuting attorney's remarks
during closing arguments constituted prosecutorial misconduct which deprived appellant
of a fair trial. Upon examination, the prosecuting attorney's closing remarks do not shift
the burden of proof to the defendant and do not amount to prosecutorial misconduct.
The comments focus on the lack of evidence supporting the defendant's theory of the case
that the gun went off accidentally.
       {¶ 20} "The test regarding prosecutorial misconduct in closing arguments is
whether the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984). A
prosecutor's conduct cannot be grounds for error unless such conduct deprived the
defendant of a fair trial. State v. Evans, 63 Ohio St.3d 231, 240 (1992). Absent the
deprivation of a fair trial, no constitutional error occurs. Darden v. Wainwright, 477 U.S.
168, 183 (1986). The Supreme Court of Ohio has cautioned that prosecutorial misconduct
constitutes reversible error only in rare instances. State v. Keenan, 66 Ohio St.3d 402,
405 (1993). Additionally, a failure to object requires that we review any error under the
stringent plain error standard. Crim.R. 52(B); see Evans at 240.
       {¶ 21} We must review a closing argument in its entirety to determine whether
prejudicial error exists. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 94. A
prosecutor's statements are not be taken out of context and given their most damaging
meaning. Id. Further, pursuant to the doctrine of cumulative error, "a conviction will be
No. 13AP-164                                                                              6


reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal." State v. Garner, 74 Ohio St.3d
49, 64 (1995).
       {¶ 22} Prosecutors are given considerable latitude in closing argument. State v.
Dillon, 10th Dist. No. 04AP-1211, 2005-Ohio-4124, ¶ 50. The prosecutor is entitled to
comment on "what the evidence has shown and what reasonable inferences may be drawn
therefrom." State v. Butler, 10th Dist. No. 03AP-800, 2005-Ohio-579, ¶ 11.
       {¶ 23} Prosecutorial misconduct exists when the language used by the prosecutor
"was manifestly intended or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused to testify." (Emphasis
sic.) State v. Webb, 70 Ohio St.3d 325, 328 (1994). The Supreme Court has clearly
identified that a prosecution's comments on the defense's failure to provide evidence to
support a theory of a case does not necessarily shift the burden of proof or necessarily go
to a defendant's refusal to testify:
                  It is long-standing precedent that the state may
                  comment upon a defendant's failure to offer evidence
                  in support of its case. Such comments do not imply
                  that the burden of proof has shifted to the defense, nor
                  do they necessarily constitute a penalty on the
                  defendant's exercise of his Fifth Amendment right to
                  remain silent. A prosecutor may jeopardize the
                  integrity of a trial by commenting on a criminal
                  defendant's decision not to testify. Nevertheless, the
                  prosecutor is not precluded from challenging the
                  weight of the evidence offered in support of an
                  exculpatory theory presented by the defense. Neither
                  must the state, in order to satisfy its own burden of
                  proof, disprove every speculative set of possibly
                  exculpatory circumstances a defendant can suggest,
                  nor refrain from arguing the defendant's failure to
                  provide evidence to support proffered theories of
                  excuse or innocence.

(Citations omitted.) State v. Collins, 89 Ohio St.3d 524, 527 (2000).        A prosecutor is
permitted to highlight the lack of evidence supporting a defendant's theory of case.
No. 13AP-164                                                                               7


       {¶ 24} Appellant argues that various statements made by the prosecution during
closing arguments where comments on appellant's failure to testify or shifted the burden
of proof onto appellant. "You're going to hear absolutely no explanation of why he would
continue to contact her and want to marry her, because there is none if he didn't do this."
(Tr. Vol. II, at 139.) "You're not gonna hear how this accident could have happened if --
why he had the gun in the first place. * * * And you're not going to hear an explanation for
the trajectory of the path of the bullet." (Tr. Vol. II, at 140.)
       {¶ 25} In the closing rebuttal, the prosecution made similar statements: "You
heard no explanation for the trajectory of the bullet other than this tug-of-war which is
pure conjecture and does not fit the evidence. And no explanation for how his firearm
could be tested in twelve different ways * * * and not go off. No explanation." (Tr. Vol. II,
at 216.)
       {¶ 26} These statements and similar ones made during the prosecution's closing
argument addressed the lack of evidence to support appellant's theory of the case and are
not comments on appellant's failure to testify. The prosecution is addressing the jury in a
future tense referring to appellant's counsel's explanation of the evidence that would
occur in appellant's closing argument or in the past tense during the prosecution's
rebuttal. These statements do not amount to prosecutorial misconduct.
       {¶ 27} The following statement was also made in the closing rebuttal: "Where are
these Facebook posts, these people he was talking to on the phone. Where are they? They
are his family. What good is that gonna do? Are they gonna come in and testify against
him? Does that make any sense?" (Tr. Vol. II, at 207.) This comment was objected to
and sustained. However, the comment does not amount to misconduct.
       {¶ 28} Defense counsel, in closing argument, stated that there was no evidence to
support Starks' claims that appellant was on Facebook and the phone all day becoming
upset and rambling:
                   Where is the evidence? Where is all this Facebook
                   rambling stuff? Where's transcripts of all that, or
                   printouts of all this Facebook rambling that Mr.
                   Brown is supposedly doing all day long?

                   Who are all these people he's talking on the phone to?
                   Where's his phone records? Who's he on the phone
No. 13AP-164                                                                                8


                   talking to all day long doing all this rambling? We
                   have no evidence, no evidence whatsoever to back up
                   these women's claims or Laurika's claims that he's on
                   Facebook all day and rambling and rambling. Where
                   is all that crazy rambling on Facebook?
                   We have no proof of that other than Laurika Stark's
                   word.

(Tr. Vol. II, at 148.)

       {¶ 29} The prosecuting attorney was responding to defense counsel's argument
that the State failed to offer some evidence, not that appellant failed to testify. The
prosecution's statements about the State not producing Facebook posts or having
appellant's family testify were neither manifestly intended to be a comment on the
accused failure to testify, nor would the jury naturally and necessarily take them to be.
       {¶ 30} It is improper for a prosecuting attorney to make arguments or remarks
likely to inflame the passions of the jurors, if intended to lead them to convict for an
improper reason. Berger v. United States, 295 U.S. 78, 88 (1935).
       {¶ 31} Appellant argues that these statements were likely to inflame the passions of
the jurors: "So he has this history of erratic behavior * * *." "He's getting upset all about
Facebook. Is that what we would do? Probably not. So keep this in mind when you're
thinking about all of these people." (Tr. Vol. II, at 113-14.)
                   You are talking about the kind of guy who writes those
                   kind of letters, who rambles all the time, who talks to
                   himself, argues with himself, and who gets so worked
                   up over a Facebook post that he cries. There's nothing
                   wrong with that, I'm just -- with men crying, I'm just
                   saying this is overly emotional. This is how he reacts.
                   Remember, Laurika [Starks] said he has his issues,
                   issues. His behavior became erratic so she had to get
                   him to leave.

(Tr. Vol. II, at 143.)

       {¶ 32} These comments about appellant's behavior are not intended to inflame the
passions of the jurors, but are comments on the evidence given by the two witnesses of,
what the prosecution argues, was appellant's irrational behavior. The prosecutor may
comment on what the evidence has shown and what are reasonable inferences from that
No. 13AP-164                                                                               9


evidence. Butler at ¶ 11. These are proper comments on the evidence properly before the
jury and do not amount to prosecutorial misconduct.
       {¶ 33} We find there was no prosecutorial misconduct during the closing
arguments or in the closing rebuttal.
       {¶ 34} The first assignment of error is overruled.

                      There was No Ineffective Assistance of Counsel
       {¶ 35} The second assignment of error argues that appellant's trial counsel's failure
to object to the prosecutor's improper statements during closing arguments deprived him
of his rights to a fair trial. As previously noted, we find that there was no prosecutorial
misconduct during the closing argument or rebuttal, therefore defense counsel's conduct
did not rise to ineffective assistance of counsel.
       {¶ 36} A two-step process is employed when considering allegations of ineffective
assistance of counsel. "First, there must be a determination as to whether there has been
a substantial violation of any of defense counsel's essential duties to his client. Next, and
analytically separate from the question of whether the defendant's Sixth Amendment
rights were violated, there must be a determination as to whether the defense was
prejudiced by counsel's ineffectiveness." State v. Lytle, 48 Ohio St.2d 391, 396-97 (1976),
vacated in part on other grounds.
       {¶ 37} A counsel performance "will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel's performance." State v.
Bradley, 42 Ohio St.3d 136, paragraph two of the syllabus. The question is whether
counsel acted "outside the wide range of professionally competent assistance." Strickland
v. Washington, 466 U.S. 668, 689.          Appellate courts must be highly deferential in
scrutinizing counsel's performance. "A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight. * * * There are
countless ways to provide effective assistance in any given case." Id.
       {¶ 38} Appellant claims that his defense counsel was ineffective and deprived him
of his constitutional rights by failing to object to all the remarks he claims were improper
that were made during the prosecution's closing argument. We have found that there was
No. 13AP-164                                                                                  10


no prosecutorial misconduct during the closing argument and therefore cannot find
defense counsel was ineffective in failing to object to such remarks.
       {¶ 39} The second assignment of error is overruled.
       Sufficient Evidence was Presented to Overcome a Civ.R. 29 Motion
       {¶ 40} The third assignment of error argues that the trial court erred by overruling
appellant's Crim.R. 29 motion for judgment of acquittal. The prosecution, however,
presented sufficient evidence going to each element of the case
       {¶ 41} When reviewing the sufficiency of the evidence to support a conviction an
appellate court must examine the evidence that, if believed, would convince the average
mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus. "The relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt." Id.
The claim of insufficient evidence invokes an inquiry about due process. It raises a
question of law, the resolution of which does not allow the court to weigh the evidence.
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 42} When there is conflicting evidence, "it [is] the function of the jury to weigh
the evidence and assess the credibility of the witnesses in arriving at its verdict. Where
reasonable minds can reach different conclusions upon conflicting evidence,
determination as to what occurred is a question for the trier of fact. It is not the function
of an appellate court to substitute its judgment for that of the factfinder." Jenks at 279.
       {¶ 43} In the case at bar, the State presented the testimony of the two victims,
Laurika Stark and Andrea Bostic, who testified to being held at gunpoint and in Bostic's
case, being shot. The State also presented evidence by forensic experts who testified to
the trajectory of the bullet; that residue of a gunshot was found on appellant's hand; and
that the gun was tested dozens of times and showed that it would not discharge
accidentally.
       {¶ 44} We find, when viewing the evidence most favorably for the prosecution, that
there was sufficient evidence going to each and every element of case from which the jury
could reasonably find appellant guilty beyond a reasonable doubt.
       {¶ 45} The third assignment of error is overruled.
No. 13AP-164                                                                                11


    The Jury's Verdict is Not Against the Manifest Weight of the Evidence
       {¶ 46} In the fourth assignment of error, appellant argues that the verdict was
against the manifest weight of the evidence. In reviewing the record, we find that the
verdict is not against the manifest weight of the evidence and there is competent and
credible evidence to support it.
       {¶ 47} A manifest weight argument, in contrast to a claim of insufficient evidence,
requires us to engage in a limited weighing of the evidence to determine whether there is
enough competent and credible evidence so as to permit reasonable minds to find guilt
beyond a reasonable doubt and, thereby, to support the judgment of conviction. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). Issues of witness credibility and concerning
the weight to attach to specific testimony remain primarily within the province of the trier
of fact, whose opportunity to make those determinations is superior to that of a reviewing
court. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). The question is whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v. Hancock, 108 Ohio
St. 3d 57, 63, quoting Martin at 175. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against a
conviction. Thompkins at 387.
       {¶ 48} A jury may "take note of the inconsistencies and resolve or discount them
accordingly * * * such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). "Furthermore, it is within the province of the jury to make the
credibility of witnesses. ('It is the province of the jury to determine where the truth
probably lies from conflicting statements, not only of different witnesses but by the same
witness')." (Citations omitted.) Dillon at ¶ 15, quoting State v. Harris, 73 Ohio App.3d 57,
63 (10th Dist.1991).
       {¶ 49} While there were inconsistencies in the testimony of the two victims in this
case, these inconstancies are not great nor do they detract from the other consistent
evidence in this case; that appellant was in both victims' homes with a gun, both victims
felt terrorized, appellant was clearly angry and emotional, and one victim was shot.
Further, the forensic evidence does not indicate that Bostic was shot accidentally. The
No. 13AP-164                                                                             12


evidence does not support appellant's argument that the jury clearly lost its way or even
the defense's theory that the gun went off accidentally. After reviewing the entire record
with caution and deference to the role of the trier of fact, we find that the verdict is not
against the manifest weight of the evidence.
       {¶ 50} The fourth assignment of error is overruled.
       {¶ 51} Having overruled all the assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.
                         KLATT, P.J., and T. BRYANT, J., concur.

                 T. BRYANT, J., retired, of the Third Appellate District,
                 assigned to active duty under the authority of Ohio
                 Constitution, Article IV, Section 6(C).
