[Cite as State v. Williams, 2012-Ohio-1741.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97039




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                OCTAVIUS WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-547334

        BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: April 19, 2012
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, OH 44113-1901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Erica Barnhill
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Octavious Williams1 (“Octavious”) appeals his conviction for

attempted murder and having a weapon while under disability.                   For the following

reasons, we affirm.

       {¶2} While history has afforded us the luxury of clarity over the participants and

their actions at the fabled O.K. Corral, the same cannot be said of the events surrounding

the situation arising on October 31, 2010, in the backyard of a Cleveland area residence.

Octavious attended a party on that day, in the upstairs apartment where his father, Arden

Terry (“Terry”), was living.      Terry was living with his girlfriend, Consuela Calloway.

Most of the individuals attending were members of Terry’s family or Consuela’s family.

The party was quite large, and many witnesses later testified to tension between Terry and

Consuela’s respective families.

       {¶3} The party began to “wind down” around midnight. The victim of this

case, Consuela’s cousin Dennis Cole, left the party while there were still many partygoers

present. Cole admitted drinking a couple of drinks during the course of the evening,

although a blood alcohol concentration (“BAC”) test administered to Cole at the hospital

that night revealed that Cole had a BAC of 0.27.




       1
         The parties both spell Williams’s first name“Octavious.” The trial court’s docket spells his
first name “Octavius.”
         {¶4} Terry’s brother Harold Kyle and Cole were standing in the front of the

house. Both gentlemen, upon hearing a commotion in the back of the house and a single

gunshot, walked around to the back of the house.

         {¶5} At the same time, Terry ran from the upstairs kitchen to the backyard where

his other brother, Ardary Bright, and his uncle were arguing with Cole’s brothers, Larry

and Cedric Johnson.      Darnell Calloway, Larry and Cedric’s brother, was also in the

backyard.     Larry had a .22-caliber pistol and threatened Terry upon his arrival.   Cedric

attempted to intervene and push Larry back.       Larry fired two or three shots, consistent

with the police officers’ later testimony that they recovered a nine-shot, .22-caliber

revolver with three spent casings.    Terry ran away from Larry, but remembers hearing

gunshots from another direction and Cedric yelling that he had been shot.

         {¶6} On his way to the backyard, Cole encountered Octavious running in his

direction.   Octavious yelled a few choice words and shot Cole in the chest.           Cole

attempted to flee and was shot again in the back, causing temporary paralysis that

continued through trial. It is undisputed that the backyard was well lit with an outdoor

light.

         {¶7} Meanwhile, three teenaged children in the upstairs apartment, ran to a

window.      All three placed Octavious’s brother,      Ricky Williams (“Ricky”), in the

backyard during the shooting despite the fact that none of the participants in the backyard

melee testified to Ricky being amongst them. One of the children claimed that Cole ran

up and punched Ricky before Ricky shot Cole and that the police dragged Cole from the
backyard to the front where he lay until the ambulance arrived.       Neither of the initial

responding officers testified to moving Cole.       The three children also testified that

Octavious was in the front room of the apartment the entire time, although none of them

could directly see Octavious until they returned to the living room, after the cessation of

the melee.

       {¶8} Finally, Terry testified that Cole and his son Demarcus Thomas exited the

apartment through the back door, leading to the backyard, moments prior to the first shot

being fired. This contradicted Kyle’s and Cole’s testimony placing them at the front of

the house before the first shot was fired.

       {¶9} The responding police officers remember Cole screaming that he knew who

shot him. It is undisputed that three other members of Cole’s family were standing

around and shouting as the police started to question Cole. One of the initial responding

officers stated that Cole said Octavious was the shooter. The supervising sergeant, who

arrived after the responding officers, also testified that, while awaiting medical help, Cole

identified Octavious as the shooter.

       {¶10} After a trial by jury, Octavious was convicted of attempted murder, the

felonious assault counts being merged with the attempted murder and having a weapon

under disability charges.   The trial court sentenced Octavious to an aggregate 15-year

prison term.    It is from this decision that Octavious timely appeals, raising three

assignments of error, which provide as follows:

       I. Prosecutorial misconduct deprived appellant of his constitutionally
       guaranteed right to a fair trial, in violation of the Fifth and Fourteenth
       Amendments to the United States Constitution and Section 10, Article I of
       the Ohio Constitution.

       II. Appellant’s constitutional right to counsel was prejudiced by the
       ineffective assistance of trial counsel.

       III. Appellant’s convictions are against the manifest weight of the evidence.

       {¶11} In his first and second assignments of error, Octavious challenges several

statements made by the prosecutor during her closing argument, more specifically,

statements that alluded to matters not supported by the evidence and that vouched for or

impugned the credibility of certain witnesses, and his trial counsel’s failure to timely

object to any such statements. For the following reasons, his first two assignments of

error are without merit.

       {¶12} In Ohio, courts allow prosecutors “considerable latitude” in closing

arguments.   State v. Skipper, 8th Dist. No. 81963, 2003-Ohio-3531, ¶ 40, citing State v.

Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768 (1984).        Nevertheless, “[p]rosecutors

must avoid insinuations and assertions calculated to mislead. They may not express

their personal beliefs or opinions regarding the guilt of the accused, and they may not

allude to matters not supported by admissible evidence.”      State v. Lott, 51 Ohio St.3d

160, 166, 555 N.E.2d 293 (1990).        The prosecutor is, however, permitted to fairly

comment on the credibility of witnesses based on the witnesses’ testimony at trial. State

v. Price, 60 Ohio St.2d 136, 140, 398 N.E.2d 772 (1979). Finally on this point, a

prosecutor’s comments should not be taken out of context and given their most damaging
meaning. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996). Courts must

review the statement within the context of the entire trial. Id.

       {¶13} In this case, Octavious contends that the state, in the closing argument,

improperly misrepresented the police officers’ testimony that Cole identified Octavious as

the shooter, improperly vouched for the police officers’ and Cole’s credibility, and

improperly impugned the defense’s witnesses, namely, the three children. Octavious did

not object to any of the statements at trial.   We, therefore, review for plain error. State

v. Fears, 86 Ohio St.3d 329, 332, 1999-Ohio-111, 715 N.E.2d 136. Under 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 only exists if the outcome of

the trial clearly would have been otherwise except for the error. State v. Harrison, 122

Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61. We apply this analysis only

under exceptional circumstances to prevent a manifest miscarriage of justice. Id.

       {¶14} Octavious argues that the prosecutor mischaracterized Officer Keane’s

testimony regarding Cole’s on-scene identification of Octavious being the shooter.

Officer Keane testified that several individuals standing around the supine victim were

talking at once.   Octavious argues that Officer Keane could not know who identified the

shooter because too many people were talking at once.       Such arguments address Officer

Keane’s credibility, not his testimony.   Officer Keane testified that he believed Cole told

him the name of the shooter, and it is undisputed that Cole gave a description of the

shooter and responded to Officer Keane’s inquiry about whether Cole knew the shooter.
From our review of the trial record, the prosecutor did not misrepresent Officer Keane’s

testimony, and any arguments to the contrary are without merit.

       {¶15} Octavious next argues that the prosecutor improperly vouched for the police

officers’ credibility when she stated that the “police don’t have a dog in this fight,” “they

have no reason to fabricate this,” and “that’s not something the police are going to make a

mistake about” during her closing argument. 2             He also argues that the prosecutor

improperly stated that Cole is a reliable witness and claimed the defense witnesses were

not credible. 3   Each of Octavious’s claims takes the prosecutor’s statement out of

context or simply points out a basis for the jury to weigh credibility.




       2
        The prosecutor’s full statement is as follows:

       So Officer Keane, Officer Mullin, [the responding officers,] come up. And Keane and
       Mullin and Sergeant Hutchinson all remember [Cole] on the ground screaming,
       hysterical, yelling out a lot, all three of them do. And why is this important? The
       police don’t have a dog in this fight. At that point they didn’t know what happened,
       they didn’t know if Mr. Cole was the aggressor or Cole. * * * Keane and Hutchinson
       both recall [Cole] saying, Tay-Tay [(Octavious’s nickname)] shot me, Ardy
       [(Terry’s)] son shot me. * * * At this point the police didn’t know who Ardy was,
       who his son was, or who Tay-Tay was. The police have no reason to fabricate this.
       And they both remember. All three remember [Cole] was screaming hysterically. *
       * * That’s not something the police are going to make a mistake about, ladies and
       gentlemen. The identification of the person who shot them, that is someone who the
       police is going — the police is going to be looking for. (Tr. 733:10-19, 733:25-734:1,
       735:4-9, 786:12-17.)
       3
         The prosecutor’s statements during closing arguments were: “[Cole] is a reliable witness.
He has been consistent throughout the pendencies [sic] of this case. When given an opportunity to
identify someone other than the defendant, he did not.” (Tr. 789:6-10.)
       {¶16} This court previously found no error in closing arguments that facially or

more directly asserted the prosecutor’s opinion.        For example, this court previously

upheld the following statements by the prosecutor about the veracity of the defendant:

       That is not believable. It is made up to fit this set of facts. (T. 214)

       She — the defendant has reason to fabricate. She has reason to lie. She
       has lied in the past. She has been convicted of crimes that involve
       dishonesty. She was not being honest with you when she testified * * *.
       (T. 215)

       [B]ut the only person that had any reason to tell a lie was — was the
       defendant.    (T. 217)     State v. Skipper, 8th Dist. No. 81963,
       2003-Ohio-3531, ¶ 42-44.

       {¶17} This court distinguished stating a personal belief that the defendant is lying

from suggesting that the evidence demonstrates that the defendant is lying.         Id. at ¶ 45.

Given the context of the entire trial, this court surpassed its uneasiness with the

prosecutor’s direct assertions that the defendant was lying based on the context of the

statement; in other words, the statements merely pointed out that the evidence

demonstrated the defendant was lying and therefore the prosecutor’s diction was, if

anything, poorly chosen.4 Id. at ¶ 46.

       {¶18} In this case, the evidence at trial established that the police officers treated

Cole as a suspect because they did not know who committed any crimes and needed to

protect their own safety upon initially arriving at the scene.        There was a throng of

       4
         We acknowledge the appearance of an intellectual slight-of-hand involved with parsing a
prosecutor’s statement so finely. In Ohio, courts must review the entire context of the trial to
determine whether isolated statements are improper. The distinguishment in Skipper acknowledges
this function and remains the precedent of this district.
partygoers racing to leave the area, and the officers needed to quickly assess the situation.

 When the prosecutor’s statements are placed in this context, those statements are not

directed at vouching for the police officers’ credibility, rather they are meant to highlight

the reasons for the jury to give credibility to the police officers’ testimony in light of

Octavious’s trial tactic — claiming the police officers misheard Cole because of the other

individuals standing around.

       {¶19} The same rationale applies to the prosecutor’s statement about Cole’s

reliability. It was in the context of Cole’s consistent testimony about Octavious being

the shooter throughout the investigation.      While we agree the prosecutor may have

mischosen her words, in consideration of the context of the statements, the use of

“reliable” rather than “consistent” does not amount to error.        See Skipper at ¶ 46.

Further, the prosecutor is free to comment on the facts adduced at trial to lend to or

detract from a witness’s credibility as long as she does not give her opinion. The closing

argument, which laid out the reasons to deem the children’s testimony as unreliable, does

not amount to the prosecutor giving an opinion; it merely invites the jury to weigh the

credibility.   None of the statements made in closing were improper, much less

constituted plain error.

       {¶20} Octavious’s ineffective assistance of counsel claim is inextricably linked to

the alleged prosecutorial misconduct. In order to substantiate a claim of ineffective

assistance of counsel, the appellant must show that (1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defendant so as to deprive him
of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 311, 2009-Ohio-2961, 911 N.E.2d

242, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). In light of our holding that the prosecutor’s remarks were not improper, his trial

counsel was not deficient, and his second assignment of error must be overruled.

       {¶21} Finally, in reviewing a claim challenging the manifest weight of the

evidence, the question to be answered is whether there is substantial evidence, proving

beyond a reasonable doubt, that all elements of the offense were established. Under this

review, we “examine the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

       {¶22} Octavious contends that because Cole was intoxicated on the night of the

shooting and gave alternate versions of the shooting — naming another as the shooter —

while suffering bouts of delusion during his hospitalization; Cedric identified Ricky as

the shooter; the state’s forensic expert testified that Octavious did not test positive for

gunshot residue5; and the defense witnesses testified that Octavious was in the apartment

while Ricky was involved in the melee, his conviction is against the manifest weight of

the evidence.



       5
         Samples for the gunshot residue test were collected from Octavious’s, Demarcus Thomas’s,
and Darnell Calloway’s left and right hands. Only the sample from Demarcus Thomas’s right hand
returned a positive indication.
       {¶23} Octavious’s arguments are misplaced and ignore the other facts established

at trial. Cedric initially told the police that he did not know who shot Cole, and it was

not until after a preliminary hearing during Octavious’s case that Cedric identified Ricky

as the shooter.    The state’s expert testified that the lack of gunshot residue is not

dispositive of whether the individual shot a gun, it only identifies those that have recently

shot a gun.     The expert stated that gunshot residue is easily wiped away after a shooting

by simply putting the hand into a pocket or washing the hand with water. Finally, none

of the participants in the melee testified that Ricky was present.   Terry and the children

claimed that Octavious was in the apartment afterwards, but that does not address the

issue of whether Octavious ran outside during the fight.     The children all placed Ricky

outside as the shooter. Octavious’s manifest weight argument depends on the jury’s

believing the children’s version of the story over the testimony of those who participated

in the fight.   The jury was free to deem the children’s testimony incredible based on the

participants’ collective testimony.

       {¶24} The case ultimately rests on Cole’s identification of Octavious as the

shooter. After weighing the evidence and considering witness credibility, we cannot not

say, based on a review of the entire record, that the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed.     There was

competent, credible evidence from Cole who saw his shooter at close range and in a

well-lit area. Although Cole had issues during his hospitalization, and misrepresented

the amount of his drinking before the shooting, his identification and version of the
incident remained consistent throughout the pendency of the case. Octavious’s third

assignment of error is overruled.

       {¶25} Octavious’s conviction is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
