[Cite as State v. Bell, 2015-Ohio-4775.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO

STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2015-L-017
        - vs -                                      :

DVONTE C. BELL,                                     :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000706.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Edward M. Heindel, 450 Standard Building, 1370 Ontario Street, Cleveland, OH 44113
(For Defendant-Appellant).


THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Dvonte C. Bell, timely appeals the jury verdict convicting him of

two counts of felonious assault with firearm specifications, two counts of aggravated

burglary with firearm specifications, and having a weapon while under a disability. He

argues that his convictions are against the weight of the evidence and based on

insufficient evidence; that he was denied the effective assistance of counsel based on

his attorney’s failure to pursue a motion to suppress; and that the trial court erred in
permitting the prosecutor’s improper closing arguments.      For the following reasons,

Bell’s arguments lack merit.

      {¶2}   On September 7, 2014, Jamie Howard returned home with her one-year-

old son from Chuck E. Cheese to the house she shared with her sister, Shakyra

Howard, on Nebraska Street in Painesville, Ohio. Jamie’s cousin, Quantana Howard,

and her aunt, Wanda Howard also lived there. Jamie had been with her cousin Steffon

Sanders and others. Quantana is Sanders’ mother.

      {¶3}   Jamie was in Quantana’s bedroom visiting for 15-20 minutes when

Quantana asked her to lock the front door. As Jamie walked to lock the door that enters

into the dining room, a man approached and entered the home. He said something like,

“get back, get back” and “who’s in here with you?” He did not have his face covered at

this time. Jamie had never seen this man before, but she got a “good look at him.” He

was a dark man who was approximately 5’9” tall with facial hair.

      {¶4}   He then walked Jamie into Quantana’s room because he could see the

light from her television shining into the dining room. Jamie described him as giving her

a push into the bedroom. Quantana was sitting on her bed, and Shakyra was sitting on

a chair in Quantana’s room. They were watching television. Before entering the room,

the man pulled out a gun, covered his face with his shirt, and commanded “What you

got? What you got?” Quantana told him that they “had nothing” and asked him not to

shoot. The man shot twice and then ran from the home. Quantana was shot in the

stomach. Shakyra ran to get her phone to call the police. She was shot in the leg.

      {¶5}   After initially speaking with the police, Sanders drove Jamie to Mentor,

Ohio to drop off her son. They immediately drove back to the Nebraska Street home




                                           2
and discovered the “whole neighborhood” standing there, including several relatives.

According to Sanders, the crowd of people was trying to determine who shot his mother.

A family friend, Dontae Cummings, showed Sanders and Jamie a photo on his phone of

a potential suspect. It was an image of Dvonte Bell that Cummings had obtained from

Facebook. Jamie indicated that although he looked similar to the shooter, she could not

confirm if the person in the photo was the shooter because it was not a good image.

Sanders showed the Facebook image to Detective Ticel and emailed it to him as well.

Neither Sanders nor Jamie had known or heard of Dvonte Bell before that night.

       {¶6}     Jamie then provided Ticel with a description of the shooter.          She

confirmed in her trial testimony:

       {¶7}     “[Prosecutor]: * * * When you first saw him [the shooter] where was he at?

       {¶8}     “JAMIE HOWARD: At the front door.

       {¶9}     “[Prosecutor]: And when you first saw him was he concealed - - - was his

identity or was his face covered any way at that point in time?

       {¶10} “JAMIE HOWARD: No.

       {¶11} “ * * *

       {¶12} “[Prosecutor]: Did you get a good look at him though?

       {¶13} “JAMIE HOWARD: Yes.

       {¶14} “* * * *

       {¶15} “[Prosecutor]: Were the lighting conditions good enough where you could

see his face?

       {¶16} “JAMIE HOWARD: Yes.”




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         {¶17} Approximately one week later, Jamie was at work at Dunkin Donuts when

she recognized the shooter as a passenger in a car driven by Malcomb Cox. Cox used

to date Jamie’s cousin. She did not call the police, but she told Quantana and Sanders,

who notified the police. Several days later, Jamie picked the image of Dvonte Bell as

the shooter via a photo lineup. Although she testified at trial that she identified the

person depicted in photo number three as the shooter, she did not directly identify the

man sitting at the defense table as the shooter. She was never asked to do so by the

state or the defense.

         {¶18} Officer Tsevdos also testified and stated that he interviewed Jamie at the

scene that night and she was not able to give him “any specific details about” the

shooter’s face and that she “stated that as he was coming up the steps to the porch he

was lifting the shirt to cover up half of his face.” Tsevdos confirmed that he wrote in his

report that Jamie “did not see his face.” Officer Alamo testified that Jamie advised him

that the suspect was dark-skinned, thin black male with a thin beard. Alamo testified

that Jamie confirmed that she would be able to identify the suspect if she saw him

again.

         {¶19} The two women who had been shot, Quantana and Shakyra, were only

able to see the top of the shooter’s face above the bridge of his nose since his head

was partially covered with his shirt.

         {¶20} Shakyra testified and confirmed that she had suffered a stroke before the

shooting that affects her ability to recall events. She confirmed that she was shot in the

leg by a male, whom she had never seen before. She stated that she had previously

identified her shooter in court two weeks after the shooting. She was not asked by




                                             4
either side to make an in-court identification of Bell as her shooter. She also confirmed

that she previously testified that she chased the shooter down the street, which she now

admits was not the truth.

       {¶21} Quantana, Shakyra’s cousin, also testified for the state.         Quantana

explained that Shakyra’s stroke significantly impacts her memory. She confirmed that

she is the “godmother” to Carey Johnson, referred to as Bixy.         They are actually

cousins, but she raised him since he was a newborn after his mother died. Bixy calls

Quantana mom, and Sanders refers to Bixy as his brother. Quantana confirmed that

she had never before seen the shooter and that his face was covered for the 35

seconds that he was in her room. Quantana was not asked to identify Bell at trial or in a

photo lineup. She also stated that Shakyra did not chase the shooter down the street,

but explained that Shakyra just “says things like that.”

       {¶22} Dontae Cummings also testified for the state pursuant to a subpoena. He

did not want to testify. He explained that Sanders had called him and told him about the

shooting.   Cummings ran over to the home where there were about 15 people

discussing who the shooter could have been. Cummings explained that he thought that

Dvonte Bell might be involved in the shooting because he had seen Bell approximately

15-20 minutes before the shooting occurred, and because “Jamie described him to a T.”

Upon showing Jamie the Facebook image, he asked her if it was him, and she said yes.

       {¶23} Cummings had been close friends with Dvonte Bell’s brother growing up

and was able to secure his image from his brother’s Facebook page. Cummings briefly

spoke with Bell in Cummings’ driveway about 20 minutes before the shooting. He had

not seen Bell in a long time and had never seen him in Painesville before. Bell was a




                                             5
backseat passenger in Cox’s car at the time. Bell rolled the window down to say hello

to Cummings. Cummings also explained that Bixy used to live at the Nebraska Street

home, and that everyone in town knew that Bixy and Cox did not get along. Cummings

identified Dvonte Bell during the trial as the person he saw in his driveway minutes

before the shooting.

       {¶24} Detective Bailey testified that he administered the photo lineup for Jamie

Howard. He confirmed that she said “yes” to folder number three, which contained the

photo of Dvonte Bell. He also described that the photo that they used did not depict Bell

with the “chin strap beard” that Jamie had described him as having on the night of the

shooting. As a result of Jamie’s identification, the officers arrested Bell nine days after

the shooting. The photo used to secure his arrest, which was obtained from the Bureau

of Motor Vehicles after Jamie’s photo lineup, was more recent and depicted Bell with a

“chin strap beard.”

       {¶25} Detective Ticel also testified for the state and explained that he had been

to this Nebraska Street home before in connection with other investigations. He knew

that Bixy previously lived there. In fact, Ticel was involved in prior surveillance drug

buys from Bixy that occurred at this house, so he suspected that the shooting of two

unarmed women had something to do with Bixy. Ticel was likewise aware of the feud

between Bixy and Cox. Ticel was shown the Facebook photo by Sanders on the night

of the shooting, but explained that the photo was very poor. Ticel also confirmed at trial

that Jamie chose Bell’s image as the shooter during the photo lineup. Further, during

Ticels’ custodial interview of Bell, Bell stated something to the effect of it is impossible




                                             6
that you have any evidence or that “you have a gun.” Yet Ticel had not told Bell that

they had not recovered the gun involved in these shootings.

      {¶26} Defense counsel objected to the lack of in-court identification of Bell by

any of the three victims at trial. Out of the presence of the jury, counsel expressed

concern that the state did not share “Brady material” with the defense as required and

that the state was identifying Bell as the shooter via the detectives’ hearsay testimony.

The trial court disagreed explaining that the defense had the opportunity to ask the

victims to identify Bell as the shooter, but it chose not to. Further, it overruled the

hearsay objection and permitted the state to bring Jamie back in to rebut the objection.

She was then asked to identify which photo she chose as the shooter in the photo

lineup. She confirmed that she chose the photograph of Bell. However, she was still

not asked whether the man sitting at the defense table, Bell, was the shooter. The

prosecution later explained that it chose not to ask Jamie based on her fear of

retribution and her recurring nightmares about the shooting. The trial court advised the

defense that they could ask Jamie whether she can currently identify Bell as the

shooter, and they did not.

      {¶27} Bell was convicted of two counts of felonious assault, second degree

felonies in violation of R.C. 2903.11(A)(2) with firearm specifications; two counts of

aggravated burglary, first degree felonies in violation of R.C. 2911.11(A)(1) with firearm

specifications; and having a weapon while under a disability, a third degree felony in

violation of R.C. 2941.145. Bell had a prior felony conviction for aggravated robbery in

Cuyahoga County. The jury found Bell not guilty of two counts of attempted murder and

two counts of aggravated robbery.




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       {¶28} Appellant’s three assignments of error assert:

       {¶29} “The convictions were against the manifest weight of the evidence and not

supported by sufficient evidence because there was no in court identification of Bell as

the perpetrator and an extremely tainted out of court identification. (T.p. at 825-829.)

       {¶30} “Bell was denied his right to effective assistance of counsel guaranteed to

him by Art. 1, Sec. 10 of the Ohio Constitution and the Sixth and Fourteenth

Amendments to the United States Constitution.

       {¶31} “The trial court committed plain error when it permitted the prosecuting

attorney to engage in improper closing argument engaging the passions of the jury

trying to gain sympathy for the victims.”

       {¶32} Bell’s first assignment of error challenges the weight and the sufficiency of

the evidence supporting his convictions. Specifically, he claims that he that he was not

the shooter and that his convictions were improper because there was no in-court

identification of him as the shooter and his out-of-court identification was tainted.

       {¶33} The Ohio Supreme Court explained the criminal manifest-weight-of-the-

evidence standard of review in State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541

(1997), stating that the weight of the evidence addresses whether the state's or the

defendant's evidence is more persuasive. Id. at 386-387. “‘[A]lthough there may be

sufficient evidence to support a judgment, it could nevertheless be against the manifest

weight of the evidence. * * * ‘When a court of appeals reverses a judgment of a trial

court on the basis that the verdict is against the weight of the evidence, the appellate

court sits as a “thirteenth juror” and disagrees with the factfinder's resolution of the

conflicting testimony.’” (Citations omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-




                                             8
Ohio-2202, 865 N.E.2d 1264, ¶ 24-25, citing Thompkins at 386-387. Further, “weight of

the evidence addresses the evidence's effect of inducing belief.” Id.

         {¶34} Whereas a challenge based on insufficient evidence invokes a due

process concern and requires the assessment of whether the evidence is legally

sufficient to support the verdict as a matter of law. State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶113. “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."

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

         {¶35} Bell claims here that his identification as the shooter was lacking,

erroneous, and improperly based on Cummings’ hunch and that this hunch snowballed

into his identification as the shooter. Bell claims that Sanders’ introduction of Bell’s

Facebook photo as a suspect to Jamie and the detectives led to his wrongful

identification and subsequent convictions. He does not challenge any other aspect of

his convictions.

         {¶36} “The burden of proof on the prosecution extends to every element of the

crime charged, including the burden of proving beyond a reasonable doubt the identity

of the defendant as the perpetrator of the crime for which he stands charged.” State v.

May, 8th Dist. Cuyahoga No. 43286, 1981 Ohio App. LEXIS 13434, *19 (June 18,

1981).

         {¶37} Aggravated burglary, pursuant to R.C. 2911.11(A), prohibits, in part, a

person (1) by force, stealth, or deception from (2) trespassing in an occupied structure




                                            9
(3) with purpose to commit any criminal offense in the structure (4) if the offender inflicts

physical harm on another or if the offender has a deadly weapon on his person at the

time. R.C. 2903.11(A)(2) defines felonious assault and prohibits, in part, a person from

knowingly causing physical harm to another by means of a deadly weapon.

       {¶38} R.C. 2923.13(A) having weapons while under disability precludes, in part,

any person from knowingly carrying or using any firearm if that person is under

indictment for or has been convicted of any felony offense of violence.

       {¶39} In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972), the United States

Supreme Court outlined the reliability factors to use in assessing the identification of a

suspect resulting from an otherwise suggestive police identification procedure. Biggers

held that “the primary evil to be avoided is ‘a very substantial likelihood of irreparable

misidentification.’ * * * It is the likelihood of misidentification which violates a defendant’s

right to due process * * *.” (Citation omitted.) Id. at 198. The Biggers court considered

the totality of the circumstances “to assess whether the identification was reliable even

though the confrontation procedure was suggestive. * * * [T]he factors to be considered

in evaluating the likelihood of misidentification include [1] the opportunity of the witness

to view the criminal at the time of the crime, [2] the witnesses’ degree of attention, [3]

the accuracy of the witnesses’ prior description of the criminal, [4] the level of certainty

demonstrated by the witness * * *, and [5] the length of time between the crime and

confrontation [identification].” Id. at 199-200.

       {¶40} Ohio courts have employed these “reliability factors” in assessing victims’

in-court and out-of-court identifications. State v. Hogan, 10th Dist. Franklin No. 11AP-

644, 2012-Ohio-1421, ¶10-11 (noting that even though police procedure was




                                              10
impermissibly suggestive, “suggestiveness of the [photo array] identification procedure

and the reliability of the identification are two separate determinations * * *. [And] a

suggestive identification procedure does not automatically require suppression of the

identification itself.”) State v. Williams, 73 Ohio St.3d 153, 163, 652 N.E.2d 721 (1995)

(employing Biggers reliability factors in assessing out-of-court identifications); State v.

Gross, 97 Ohio St.3d 121, 127, 2002-Ohio-5524, 776 N.E.2d 1061 (holding in part that

although the show-up in that case was unduly suggestive, the identifications were

nonetheless admissible upon reviewing the Biggers factors.)

       {¶41} Jamie’s positive identification of Bell as the shooter via the photo lineup

came about one week after the shooting, and it occurred soon after she had a second

opportunity to see Bell as a passenger in a car driven through the drive-through where

she worked. Further, she confirmed that she had a good opportunity to see his face on

the night of the shooting before he covered his face. The lighting was good, and she

described meeting him face-to-face at her front door. Jamie demonstrated a high level

of certainty at the time of her testimony, and her prior, lower level of certainty was when

she was attempting to identify Bell as the shooter via a zoomed in Facebook image

shown to her on a cellular telephone. She had never seen the shooter before that night.

She then confirmed via her trial testimony that she selected Bell’s image as the shooter.

       {¶42} Bell claims that the fact that Jamie was shown his image before positively

identifying him as the shooter taints that identification. Again, however, a family friend

showed her the image and not the police. State v. Monford, 190 Ohio App.3d 35, 2010-

Ohio-4732, 940 N.E.2d 634, ¶54-55 “witness exposure to photographs of the suspect

shown on television prior to identification does not require suppression of the




                                            11
identification” because the exposure was not a result of police action.) Further, Bell’s

theory of wrongful identification was before the jury. Defense counsel’s closing remarks

stressed the fact that the state lacked both photo lineup and trial identifications by

Shakyra and Quantana. Yet, defense counsel never asked either at trial whether they

could identify Bell as the shooter. Defense counsel also repeatedly argued in closing

that this was a case of misidentification because Jamie’s testimony was tainted by

viewing Bell’s photo before she identified him as the shooter.

       {¶43} Additionally, a review of the photographs of Bell explains Jamie’s

uncertainty as to whether the image of Bell that was shown to her on the night of the

shooting depicted the shooter. This Facebook image of Bell appears to be an enlarged

section of another photograph. It is very dark, the details of the person’s face in this

photo are difficult to see, and the eyes of the individual in this image are reflecting the

flash of the camera. Unlike the Facebook photo, the image of Bell used by the City of

Painesville police in the photo lineup is not blurry or zoomed in, and it clearly depicts

Bell’s face. Further, if there was doubt as to the victim’s ability to identify Bell as the

shooter, the trial court specifically advised defense counsel that it should ask Jamie

whether she was currently able to identify Bell as the shooter. They did not.

       {¶44} Finally, we must give the jury’s decision as to Jamie’s credibility as a

witness great deference. State v. Covington, 10th Dist. Franklin No. 02AP-245, 2002-

Ohio-7037, ¶28. “Because the facts of this case reveal neither state action nor police

misconduct, the alleged suggestiveness of [the defendant’s] identification goes to the

weight and reliability of the testimony rather than admissibility, a matter addressed

through effective cross-examination.” State v. Ware, 10th Dist. Franklin No. 04AP-43,




                                            12
2004-Ohio-6984, ¶55 citing State v. Ball, 10th Dist. Franklin No. 99AP-1288, 2000 Ohio

App. LEXIS 4247 (Sept. 21, 2000).

       {¶45} Accordingly, and upon reviewing the totality of the circumstances, we find

that Jamie’s photo lineup identification of Bell was proper, and that the defense

arguments regarding Jamie’s reliability were appropriately before the jury for its

consideration. We do not find that Jamie’s identification of Bell as the shooter created a

“very substantial likelihood of irreparable misidentification.” Biggers at 198. Bell was

identified as the man who knowingly entered the Nebraska Street home, pulled out a

gun, and shot two individuals. Further, his demands as to “what you got?” indicate his

intent to commit a theft while in the home. Accordingly, Bell’s convictions were not

against the manifest weight of the evidence and were supported by sufficient evidence.

Thus, his first assignment of error lacks merit and is overruled.

       {¶46} Bell’s second assignment of error is also founded on his theory that he

was improperly identified as the shooter. First, Bell asserts that his trial counsel was

ineffective for failing to move to suppress Jamie’s identification of him as the shooter.

Second, he claims he was denied the effective assistance of counsel based on

counsels’ failure to object to hearsay testimony about Jamie’s identification of Bell via

the photo lineup.

       {¶47} A challenge on the basis of effective assistance of counsel requires the

application of a two-part test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052 (1984).    First, an appellant must show that his counsel's performance was

deficient, which requires a showing that counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, an




                                            13
appellant must demonstrate that his attorney’s deficiencies were so serious that they

prejudiced his defense and deprived him of a fair trial. Id. Further, the appellant has

the burden to prove that he was prejudiced and must overcome the strong presumption

that counsel's performance was sufficient. State v. Smith, 17 Ohio St.3d 98, 100, 477

N.E.2d 1128 (1985). To demonstrate prejudice, an appellant must establish that there

exists a reasonable probability that but for his attorney’s mistakes, he would not have

been found guilty.    State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus.

      {¶48} The Sixth Amendment does not require counsel to pursue a motion to

suppress in every case. State v. Jefferson, 9th Dist. Summit No. 20156, 2001 Ohio

App. LEXIS 1281, *8-10 (Mar. 21, 2001).          However, the failure to file a motion to

suppress can constitute ineffective assistance of counsel if the motion implicates

matters critical to the defense and if the failure results in prejudice. Id. at *10 citing

State v. Garrett, 76 Ohio App. 3d 57, 63, 600 N.E.2d 1130 (11th Dist.1991).

      {¶49} In the present case, Bell asserts that he was denied the effective

assistance of counsel first via his trial attorneys’ failure to pursue a motion to suppress

Jamie’s identification of him as the shooter via the out-of-court photo lineup. He claims

that her viewing his photo as a possible suspect before the police conducted their photo

lineup was unduly suggestive and resulted in his improper identification. He claims that

it should have been excluded as the “fruit of the poisonous tree.” For the following

reasons, we disagree.

      {¶50} The defendant has the burden to show the identification procedure was

unduly suggestive, and if he satisfies that burden, then the court must assess whether




                                            14
under the totality of the circumstances, the identification is reliable despite its suggestive

character. State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶19.

       {¶51} We note that there is no argument that the photo lineup was not

administered pursuant to the statutory mandates in R.C. 2933.83. Instead, Bell argues

that Jamie’s viewing of Bell’s photo before the state conducted the photo lineup was

improperly suggestive and caused her to choose him as the shooter. This argument

could have been meritorious if the police had shown Jamie Bell’s photo as a suspect in

advance of the lineup. State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, 940

N.E.2d 634, ¶54-55. However, it was a family friend that showed her Bell’s photo.

Further, she explained that although the man in the photo resembled the shooter, she

was unable to definitively identify the man in this initial photo as the shooter based on

the poor quality of the image and since she did not personally know him. The lineup

was then conducted approximately one week later and a different photo of Bell was

used. The lineup resulted in her positive identification of Bell as the shooter.

       {¶52} Jamie confirmed at trial that she identified the photo of Bell as the shooter.

She was never asked to directly identify Bell in court by the prosecutor or defense

counsel.    Furthermore, in an effort to impeach their credibility, defense counsel

referenced during cross-examination of Shakyra and Quantana that each had identified

Bell as their shooter in a prior, municipal court proceeding. This transcript is not before

us.

       {¶53} Again, Jamie confirmed at trial that she had a good opportunity to see the

shooter’s face; that the lighting was good; and that she subsequently saw him at Dunkin

Donuts after the shooting and before the photo lineup. Thus, even assuming that the




                                             15
photo lineup was improperly suggestive, Jamie’s identification was not so unreliable as

to cause a likelihood of misidentification. Accordingly, we cannot conclude that the

result of the trial would have been different or that the trial court would have granted a

motion to suppress Jamie’s identification of Bell as the shooter. Thus, there was no

resulting prejudice.

       {¶54} The second aspect of Bell’s ineffective assistance of counsel claim alleges

that his counsel was ineffective since they failed to object to the officers’ hearsay

testimony. Bell claims that the officers were permitted to testify that Jamie picked Bell’s

photo as the shooter during the photo lineup. Contrary to his argument, however, Bell’s

counsel did object on hearsay grounds. And in response to defense objections, the

state recalled Jamie to testify and to confirm which photo depicted the shooter.

Thereafter, and based on apparent strategic decisions, Bell’s attorneys still did not ask

Jamie for an in-court identification of Bell as the shooter. Thus, we cannot find that

Bell’s counsel was ineffective.

       {¶55} Based on the foregoing, Bell’s second assigned error lacks merit in its

entirety.

       {¶56} Bell’s third and final assignment of error challenges statements made by

the prosecutor during the state’s closing argument. Bell claims the state improperly

invoked sympathy for the shooting victims. As the state points out, however, there were

no defense objections during closing arguments, and as such, Bell has waived all but

plain error.

       {¶57} “[N]otice of plain error is to be taken ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State




                                            16
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of syllabus (1978). An

alleged error does not constitute plain error under Crim.R. 52(B) unless but for the error,

the result of the trial would have been different. State v. Campbell, 69 Ohio St.3d 38,

41, 630 N.E.2d 339 (1994), citing Long, supra.

       {¶58} Bell takes issue with the prosecutor’s statements in closing in which he

summarizes the details of the shooting from the victims’ perspectives. He claims that

the statements constitute prosecutorial misconduct since the statements concerned the

heinous nature of the offense. Bell suggests that the state’s argument should have

been limited to comments regarding the identification of Bell as the shooter because

that was the only issue at trial. We disagree.

       {¶59} Bell must first show that the prosecutor’s statements were improper. Then

he must demonstrate that the improper comments prejudiced the outcome of the trial.

In assessing whether it was prejudicial, a reviewing court must review the closing

arguments as a whole. State v. Slagle, 65 Ohio St.3d 597, 606-607, 605 N.E.2d 916

(1992).

       {¶60} Upon reviewing the record with regard to Bell’s claimed error, we cannot

hold that the admission of the prosecutor’s closing arguments constitutes plain error.

The state’s closing statements detail the offense in order to show that it met its burden

and had established the necessary elements of the offense, including the fact that the

defendant entered this home without permission and shot these women in their own

bedroom. The state was not limited to discussing the identity of the shooter. Although

the facts of this case may raise emotion and sympathy for the victims, the state recited

the unfortunate details of the case. It did not go into unnecessary or graphic detail.




                                            17
Thus, Bell has not shown that but for the error, he would have been found not guilty,

and as such, his third assignment of error lacks merit.

      {¶61} Based on the foregoing reasons, Bell’s assignments of error lack merit,

and the judgment of the Lake County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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