[Cite as State v. Yanez, 2017-Ohio-7209.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-10-190

                                                  :            OPINION
    - vs -                                                      8/14/2017
                                                  :

JUAN JESUS YANEZ a.k.a. JUAN                      :
JESUS VANEZ,
                                                  :
        Defendant-Appellant.
                                                  :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2015-06-0899



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Juan Yanez, appeals his conviction in the Butler County

Court of Common Pleas for felonious assault, as well as court costs imposed in two criminal

cases in which he was the defendant.

        {¶ 2} Yanez was the defendant in two separate criminal cases. In the first case,
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Yanez was charged with two counts of felonious assault and aggravated robbery. Yanez

pled not guilty, and the matter proceeded to a jury trial. The jury found Yanez guilty of one

count of felonious assault. In the second case, Yanez was charged with burglary and

possessing criminal tools, and Yanez pled guilty to the charges. Within one sentencing

hearing, the trial court sentenced Yanez on both cases and ordered him to pay court costs

for each. Yanez appeals the imposition of court costs through his third assignment of error.

       {¶ 3} While Yanez appeals the court costs associated with both of his cases, he only

appeals issues related to his trial for felonious assault, and does not otherwise challenge his

guilty pleas for burglary and possessing criminal tools. The pertinent facts regarding the

felonious assault conviction are as follows.

       {¶ 4} Hamilton police responded after receiving reports that two men had been

assaulted. Upon arrival, the officers observed a group of people holding down a man, later

identified as Yanez, as well as two men who had been stabbed. Officers investigated the

scene and located a knife in a grassy area near where the assaults occurred.

       {¶ 5} One of the stab victims told officers that he was near his car when Yanez came

up behind him, showed a knife, and demanded his wallet. When the victim tried to push

Yanez away, Yanez stabbed the victim in the hand, arm, face, neck, and stomach. The

victim, who was visiting his brother, ran to his brother's house and was followed by Yanez.

The victim's brother opened the door, and the victim told people inside that he had been

stabbed. At that point, Yanez tried to flee on his bicycle.

       {¶ 6} Several people who had been in the home of the victim's brother chased after

Yanez. When Yanez turned his head to see if he was being chased, his bicycle hit the curb

and he fell. The people chasing Yanez began to struggle with him, and Yanez stabbed one

of the people during the struggle. Eventually, the victim's brother was able to wrestle the

knife from Yanez, and he threw it into the nearby grass.
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       {¶ 7} Yanez was charged with two counts of felonious assault, one for each person

he stabbed, as well as aggravated robbery. He pled not guilty to the charges, and the matter

proceeded to a two-day trial. During the trial, Yanez claimed self-defense, and testified that

he was protecting himself from the two men he stabbed. The jury found Yanez guilty of

felonious assault on the first man only. Yanez now appeals his conviction, raising the

following two assignments of error.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

ENTERING JUDGMENT ON A GUILTY VERDICT FOR COUNT ONE.

       {¶ 10} Yanez argues in his first assignment of error that the trial court should not have

entered the guilty verdict because he was successful in proving self-defense.

       {¶ 11} To establish the affirmative defense of self-defense, a defendant must prove

by a preponderance of evidence that the defendant (1) was not at fault in creating the

situation giving rise to the affray, (2) had a bona fide belief that he was in imminent danger of

death or great bodily harm and that his only means of escape from such danger was in the

use of such force, and (3) did not violate any duty to retreat or avoid danger. State v. Napier,

12th Dist. Clermont No. CA2016-04-022, 2017-Ohio-246, ¶ 28.

       {¶ 12} Yanez was convicted of felonious assault in violation of R.C. 2903.11(A)(2),

which prohibits causing or attempting to cause "physical harm to another or to another’s

unborn by means of a deadly weapon or dangerous ordnance."

       {¶ 13} During Yanez's trial, the jury heard conflicting evidence from witnesses. While

Yanez testified that he was not the initial aggressor and that he only fought the two men he

stabbed after they attacked him, the jury heard testimony from the two men that Yanez

stabbed them after trying to steal the first man's wallet.

       {¶ 14} The first man testified that Yanez attacked him from behind and demanded his
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wallet. When the man pushed him, Yanez stabbed the man multiple times and only stopped

once the man was able to run to his brother's house. The jury also heard testimony from

several witnesses, including officers who reported to the scene, that Yanez was not injured

on the night of the incident.

       {¶ 15} Conversely, the jury heard testimony from Yanez that he and the man he

stabbed knew each other for many years, and that he and the man had disagreements with

each other in the past. Yanez claimed that on the night of the incident, he and his girlfriend

were riding bicycles along the Great Miami River when he dropped a pack of cigarettes and

stopped to pick them up. Yanez testified that when he was getting back on his bicycle, he

was attacked by the first man he stabbed. He also claimed that the second man he stabbed

hit him several times with bolt cutters and that he was kicked and hit several times by the

men who were struggling with him.

       {¶ 16} While Yanez's testimony conflicts with testimony from the state's witnesses,

the jury is the best judge of witness credibility and we will not disturb the jury's finding that

Yanez's testimony lacked credibility that he was acting in self-defense when he stabbed the

first man. The jury heard evidence that contradicted Yanez's testimony, including that Yanez

was not injured on the night of the incident. This testimony directly conflicted Yanez's

testimony that he was kicked and beaten with bolt cutters before stabbing the two men. The

jury's verdict demonstrates that it found Yanez's testimony lacking to prove that he acted in

self-defense when stabbing the first man, and the trial court acted properly by entering the

conviction based on the jury's verdict.

       {¶ 17} After reviewing the record, we find that the trial court did not err in entering the

guilty verdict. Yanez's first assignment of error is, therefore, overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} APPELLANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO
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PROSECUTORIAL MISCONDUCT.

        {¶ 20} Yanez argues in his second assignment of error that his trial was unfair

because of prosecutorial misconduct.

        {¶ 21} For a conviction to be reversed on the basis of prosecutorial misconduct, a

defendant must prove the prosecutor's acts were improper and that they prejudicially affected

the defendant's substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶

62. To demonstrate prejudice, a defendant must show that the improper remarks or

questions were so prejudicial that the outcome of the trial would clearly have been otherwise

had they not occurred. State v. Jones, 12th Dist. Butler No. CA2006-11-298, 2008-Ohio-865,

¶ 21.

        {¶ 22} The focus of "an inquiry into allegations of prosecutorial misconduct is upon

the fairness of the trial, not upon culpability of the prosecutor." State v. Gray, 12th Dist.

Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is not

grounds for error unless the defendant has been denied a fair trial." State v. Olvera-Guillen,

12th Dist. Butler No. CA2007-05-118, 2008-Ohio-5416, ¶ 27.

        {¶ 23} As no objections were raised to the claimed instances of prosecutorial

misconduct, we will review such for plain error. Pursuant to Crim.R. 52(B), "plain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court." Plain error does not exist unless the error is obvious and but for the

error, the outcome of the trial would have been different. State v. Blacker, 12th Dist. Warren

No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. Notice of plain error must be taken with utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice. State v. Baldev, 12th Dist. Butler No. CA2004-05-106, 2005-Ohio-2369, ¶ 12.

        {¶ 24} Yanez first claims that the prosecutor committed misconduct when questioning

him about his felony record on cross-examination. The prosecutor asked about Yanez's
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burglary convictions from 2005 and 2012, and Yanez does not challenge that the state could

use such convictions to impeach his credibility as a witness. However, Yanez claims that the

state's actual purpose in addressing the convictions was to suggest that Yanez was planning

to commit burglary on the night of the incident. During the state's cross-examination, the

prosecutor asked Yanez why he was wearing a bandanna on the night in question, and why

he was in possession of a flashlight and wire cutters. After Yanez answered the prosecutor's

questions, the prosecutor asked, "Sure you weren't out there doing something else?" and

later asked, "You've been convicted multiple times of burglary?"

       {¶ 25} While Yanez was only convicted of felonious assault, the state also charged

him with aggravated robbery. Yanez pled not guilty to the charge, and the state was within its

authority to question Yanez about the robbery charge. Yanez did not contest that on the

night of the incident, which occurred in June, he was wearing gloves, carrying wire cutters, a

flashlight, and a knife. As such, the prosecutor's line of questioning was proper given that the

state was entitled to present evidence regarding all the charges brought against Yanez.

       {¶ 26} While the question regarding previous convictions for burglary may have been

close in time to the state's question as to why Yanez was wearing gloves and carrying wire

cutters, we cannot say that such rises to the level of plain error where the state was acting

within its right to challenge Yanez's credibility. Absent an objection and discussion of the

matter and how the question was being used, we are not able to conclude that the question

itself was enough to cause a miscarriage of justice where the jury heard of Yanez's

convictions multiple times throughout trial, including on Yanez's direct examination.

       {¶ 27} Yanez next argues that the prosecutor committed misconduct by stating during

closing argument that part of the defense strategy was to suggest that a police conspiracy

occurred during its investigation into the incident. During the state's closing argument, the

prosecutor stated "now it's a conspiracy. Now, the police are involved. * * * Now the police
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are in on it." The prosecutor also alluded to Yanez's prior convictions for burglary and

mentioned Yanez's testimony that he was wearing gloves, carrying wire cutters, and a

flashlight.

       {¶ 28} Regarding the police conspiracy issue, the record indicates that Yanez testified

that when he tried to show police his injuries "they told me to shut the fuck up." Yanez also

testified that he was told to shut up when he told police he wanted to file assault charges

against the men he stabbed. Moreover, defense counsel cross-examined the officers who

investigated the matter and asked questions that ranged from suggesting insufficient police

work to insinuating that police mistreated evidence on the night of the incident. When the

closing argument is read in conjunction with the testimony at trial, the state did not engage in

misconduct by referencing Yanez's defense strategy to question police activity on the night of

the incident.

       {¶ 29} Regarding the state's reference to Yanez's convictions, the record shows that

the state was questioning Yanez's credibility during trial. When read in whole, the state's

closing argument clearly made Yanez's credibility a key issue. The prosecutor's closing

argument addressed the evidence and inferences that could reasonably be drawn from such

testimony to show that Yanez's testimony lacked credibility. Using the specific evidence and

testimony elicited during trial, the prosecutor properly made the challenged comments in

context of explaining why the defendant lacked credibility.

       {¶ 30} Yanez also claims that the prosecutor engaged in misconduct when he stated,

"you don't put a convicted felon on the stand to tell you the truth. You just don't." Yanez

claims that the state hoped to convince the jury that he was a liar and to mislead the jury into

believing that the defense strategy was to have Yanez testify and lie in order to escape

conviction. However, the evidence at trial indicated that Yanez claimed that he was the

victim and that he was acting in self-defense at the time of the stabbing. Thus, the state was
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merely making an argument that Yanez's testimony lacked credibility or corroboration. As

previously stated, for example, Yanez claimed to have been beaten and kicked by the

stabbed men, but he showed no sign of injury when police arrived on the scene.

       {¶ 31} Yanez also attempts to claim this singular comment insinuates that his counsel

was somehow acting inappropriately. Such an assumption can only be gleaned if taking the

statement out of context from the state's entire closing argument. This, we decline to do.

While attempts to stigmatize opposing counsel are universally condemned, here, the state's

comment was well-within the wide range of latitude customarily given to counsel in closing

arguments. State v. Haddix, 12th Dist. Warren No. CA2011-07-075, 2012-Ohio-2687. While

arguably inartful, the comment, within context of the state's closing argument, was merely an

attempt to challenge Yanez's credibility.

       {¶ 32} Yanez also argues that the prosecutor engaged in misconduct when making a

comment on the 9-1-1 call reporting the incident to police. The call, which was made by one

of the men stabbed, was played to the jury. During closing arguments, the prosecutor stated,

"I want you to listen to that 9-1-1 call. See if you hear fear in [the man's] voice. I did." While

we find the prosecutor's statement misguided in referring to himself, it does not rise to the

level of plain error.

       {¶ 33} The record is clear that the evidence offered by the two parties was in direct

conflict. While Yanez never denied that he stabbed both men, he claimed that he did so in

self-defense.    The prosecutor, in arguing that the stabbings were not self-defense,

commented on the evidence offered specific to the 9-1-1 call. While there was no need for

the prosecutor to interject a personal perspective regarding the caller's state of mind, we find

the result of Yanez's trial would not have been different absent the statement. The jury

instructions clearly guided the jurors to determine on their own what weight, if any, should be

attributed to the 9-1-1 call. This is true regardless of the prosecutor's single reference
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regarding his personal perception. As such, we cannot say the prosecutor's imprudent

statement rose to the level of plain error.

        {¶ 34} After a review of the record, the statements alleged above did not constitute

prosecutorial misconduct, individually, or collectively. Instead, the jury heard ample evidence

that Yanez stabbed the victim after demanding his wallet, and the evidence corroborated the

victim's testimony that he was assaulted rather than Yanez acting in self-defense. We find

no plain error in the state's comments or questions during trial, as there is no indication in the

record that absent the comments or questions, the result of Yanez's trial would have been

different. As such, Yanez's second assignment of error is overruled.

        {¶ 35} Assignment of Error No. 3:

        {¶ 36} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

ORDERING THE PAYMENT OF COSTS IN THE JUDGMENTS OF CONVICTION FOR

CASE NOS. CR2015-06-0899 AND CR2015-11-1693.

        {¶ 37} Yanez argues in his final assignment of error that the trial court erred in

ordering him to pay court costs.

        {¶ 38} R.C. 2947.23(A) requires a trial court to include in the sentence costs of

prosecution and to render a judgment against the defendant for such costs. According to the

Ohio Supreme Court, the trial court must impose court costs at the sentencing hearing, and

imposition in the sentencing entry is not enough. State v. Joseph, 125 Ohio St.3d 76, 2010-

Ohio-954.

        {¶ 39} While Yanez claimed in his brief that the trial court did not address costs

during the sentencing hearing, the record indicates otherwise.1 As previously stated, Yanez

was sentenced on both cases at the same sentencing hearing, and during that hearing, the



1. During oral arguments to this court, Yanez conceded that his assignment of error was meritless.
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trial court addressed costs. "Will order the defendant to pay the court costs in this matter.

Mr. Yanez, if you failure [sic] to pay court costs, community service may be imposed upon

you where your failure to pay court costs, in that event, any community service that you

perform will be made applied times the federal minimum wage to arrive at a * * * figure

against those court costs."

       {¶ 40} The trial court's express statement regarding court costs fulfilled the court's

duty to impose court costs at the sentencing hearing. As such, Yanez's final assignment of

error is overruled.

       {¶ 41} Judgment affirmed.


       S. POWELL, P.J., and M. POWELL, J., concur.




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