[Cite as State v. Johnson, 2014-Ohio-494.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99822



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       ERIC JOHNSON
                                                       DEFENDANT-APPELLANT


                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-567736-A

             BEFORE:           Blackmon, J., Boyle, A.J., and E.A. Gallagher, J.

             RELEASED AND JOURNALIZED:                     February 13, 2014
                                 -i-


ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Nicole M. Ellis
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Eric Johnson appeals his convictions for aggravated robbery,

kidnapping, attempted murder, and related gun specifications.       Johnson assigns the

following errors for our review:

      I. The trial court erred in convicting and consecutively sentencing allied
      crimes of similar import which resulted in cumulative punishments
      violating the double jeopardy clause of the Fifth Amendment to the United
      States Constitution, as applied to the states through the Fourteenth
      Amendment, and Section 10, Article I of the Ohio Constitution.

      II. The trial court abused its discretion by imposing consecutive sentences
      contrary to R.C. 2929.14 and the purposes and principles of the felony
      sentencing guidelines.

      III. Appellant was denied the effective assistance of counsel in violation of
      Amendments VI and XIV, United States Constitution; and Article 1,
      Section 10, Ohio Constitution.

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

      V. 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.

      VI. The appellant was denied his right to due process when the court failed
      to hold a proper Remmer hearing to determine potential juror bias.

      {¶2} Having reviewed the record and pertinent law, we affirm Johnson’s

convictions and sentence. The apposite facts follow.

      {¶3} On October 22, 2012, the Cuyahoga County Grand Jury indicted Johnson on

one count of kidnapping, two counts of aggravated robbery, two counts of felonious
assault, and a single count of attempted murder. The aforementioned counts had one and

three-year firearm specifications attached. The grand jury also indicted Johnson on one

count of petty theft.

       {¶4} On November 5, 2012, Johnson pleaded not guilty at his arraignment and

several pretrials were later conducted. Ultimately, on January 23, 2013, Johnson filed a

motion to suppress eyewitness identification. The trial court denied the motion, and on

February 14, 2013, a jury trial commenced.

                                        Jury Trial

       {¶5} At trial, through the testimony of six witnesses, the evidence established

that in the early hours of August 26, 2012, James Keith was robbed and shot multiple

times. As he laid in the middle of the street, a passing motorist stopped and summoned

EMS, who arrived to find Keith’s bloody body.             The EMS transported Keith to

MetroHealth Hospital where he remained for more than a month.

       {¶6} Detective David Harris of the Cleveland Police Department Fourth District

testified that he and his partner, Detective Brian Todd, immediately responded to the

scene, where they found Keith screaming that he had been shot.             Detective Harris

testified that they were unable to ascertain who had shot Keith, because he just kept

repeating hysterically that he had been shot and then passed out.

       {¶7} Detective James Brooks, also of the Cleveland Police Department’s Fourth

District, testified that he went to see Keith at the hospital almost a month later. Detective

Brooks testified that Keith indicated that “E” shot him and that “Junior” was with “E.”
Detective Brooks testified that Keith indicated that “E” and “Junior” were from the

Garden Valley Estates. Further investigation revealed that “E” was Johnson’s nickname

and “Junior” was codefendant John Alexander’s nickname.

      {¶8} Detective Brooks, using a procedure known as blind administration, created

photo arrays that Detective James Bellanca later administered to Keith.          Detective

Brooks stated that blind administration is used to remove any signs of bias when the

photo lineup is presented to the victim or witness.     Detective Bellanca did not know

which of the photographs in the array, if any, depicted Johnson or his codefendant and

that he was not present when Detective Bellanca administered the photo arrays.

      {¶9} After being shown the photo arrays, Detective Brooks said that Keith

identified the photo of Johnson as his assailant, circled Johnson’s photo, signed his name,

and indicated that he was certain that Johnson was the man who robbed and shot him

multiple times.   Keith also identified Alexander as Johnson’s codefendant. In addition,

Keith made an in-court identification of Johnson.

      {¶10} Keith testified that he had gone to the Garden Valley Estates to borrow

money from his friend, Mya. After picking up the money, he started to walk home

through a field near East 93rd Street and Union Avenue, when he saw Johnson and

Alexander sitting in a black Volkswagen Jetta. Keith stated that he knew Johnson, but

only knew his nickname “E” and knew Alexander since he was 14 years old, but only by

his nickname “Junior.”
       {¶11} Keith testified that shortly after he had passed the Volkswagen Jetta, he felt

a gun in the back of his head, turned around, and looked in Johnson’s eyes. Johnson

proceeded to hit him in the head with the gun and said: “Don’t you know this is a

robbery?” Keith looked again and saw Alexander standing a couple feet away.

       {¶12} Keith said that Johnson kept asking if Keith knew where he was, which is

gang parlance indicating that Keith was in the wrong territory.     Johnson then ordered

Keith to empty his pocket and he complied, giving up $40 and two cell phones.

       {¶13} After Keith gave up his property, Johnson ordered him to run, but then

began shooting.    A bullet struck Keith’s leg, he lost balance and fell near a pole.

Johnson then shot him multiple times in his stomach from close range and he was looking

at Johnson the entire time.   Johnson and Alexander then fled in the Volkswagen Jetta.

       {¶14} Keith laid on the ground thinking he was going to die, but decided to crawl

into the middle of the street. He said a motorist eventually pulled alongside him and

called for an ambulance. Keith later passed out and when he woke up in the hospital, the

staff told him he had been in a coma.

       {¶15} The jury found Johnson guilty of all counts. The trial court found the

kidnapping and aggravated robbery charges merged for sentencing purposes. The trial

court also found that the felonious assault and attempted murder charges merged for

sentencing purposes. The state elected that Johnson be sentenced on aggravated robbery

and attempted murder.
       {¶16} The trial court then sentenced Johnson to three years for the firearm

specification that was to be served prior to and consecutive to the underlying charges.

The trial court then imposed prison terms of nine years each for the two underlying

charges.   Finally, the trial court ordered that the sentences be served consecutively for a

total prison term of 21 years.

                                     Allied Offenses

       {¶17} In the first assigned error, Johnson argues the trial court erred by imposing

separate sentences for his convictions for aggravated robbery and attempted murder.

Johnson contends these were allied offenses of similar import.

       {¶18} Our review of an allied offenses question is de novo. State v. Webb, 8th

Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶19} R.C. 2941.25 is the codification of the judicial doctrine of merger and

provides guidance as follows:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

R.C. 2941.25; State v. Patterson, 8th Dist. Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 33.
      {¶20} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court established the proper analysis for determining whether offenses

qualify as allied offenses subject to merger pursuant to R.C. 2941.25. In doing so, it

expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699,

and held that rather than compare the elements of the crimes in the abstract, courts must

consider the conduct of the accused:

      In determining whether offenses are allied offenses of similar import under
      R.C. 2941.25(A), the question is whether it is possible to commit one
      offense and commit the other with the same conduct * * *. If the offenses
      correspond to such a degree that the conduct of the defendant constituting
      commission of one offense constitutes commission of the other, then the
      offenses are of similar import.

      If the multiple offenses can be committed by the same conduct, then the
      court must determine whether the offenses were committed by the same
      conduct, i.e., “a single act, committed with a single state of mind.”

      If the answer to both questions is yes, then the offenses are allied offenses of
      similar import and will be merged.

      Conversely, if the court determines that the commission of one offense will never
      result in the commission of the other, or if the offenses are committed separately,
      or if the defendant has separate animus for each offense, then, according to R.C.
      2941.25(B), the offenses will not merge.

(Citations omitted.) Id. at ¶ 48-51; State v. Burt, 8th Dist. Cuyahoga No. 99097,

2013-Ohio-3525, ¶ 30.

      {¶21} In the instant case, the aggravated robbery and the attempted murder were

not committed with the same conduct or animus. The testimony at trial established that

Johnson stuck a gun to the back of Keith’s head and demanded the victim’s money.

Keith complied, Johnson took the money, and ordered him to run. At that juncture, the
aggravated robbery was completed.          Keith could have fled to safety and Johnson could

have departed with his ill-gotten gains.

          {¶22} However, when Keith started to flee as instructed, Johnson began shooting,

hitting him in the leg. As Keith stumbled to the ground, Johnson approached and fired

five more shots into Keith’s stomach. At that juncture, a second offense with a separate

animus was completed.

          {¶23} Recently, we encountered a substantially similar fact pattern in State v.

Ranzy, 8th Dist. Cuyahoga No. 97275, 2012-Ohio-2763. In Ranzy, defendants attempted

to rob a victim at gun point. The victim attempted to flee, but was wrestled to the

ground. The victim managed to extricate himself and began running in a zig zag

fashion down the street. As the victim fled, defendant fired multiple gunshots, striking

the victim in shoulder.

          {¶24} In Ranzy, addressing the same issue Johnson now raises, we specifically

stated:

          These offenses were not committed with the same conduct or animus. Once
          Randle opted to try to escape or flee from the robbery, the defendant and
          Vanderhorst decided to escalate the matter and try to kill him. True,
          defendant failed to successfully rob Randle, but that failed attempt does not
          create an allied offense situation where the offender can shoot at the victim
          attempting to murder him based on the logic that the robbery was
          “ongoing.” This is not a case where the gun was fired accidentally; there
          were clear purposeful efforts to kill Randle by shooting him in the head and
          then proceeding to chase after him while still firing the weapon.

Id., citing State v. Orr, 8th Dist. Cuyahoga No. 96377, 2011-Ohio-6269, ¶ 38.
       {¶25} Like Ranzy, the two convictions herein are not allied offenses of similar

import.    Consequently, the trial court did not err when it imposed separate sentences for

the aggravated robbery and attempted murder convictions.         Accordingly, we overrule

the first assigned error.

                                 Consecutive Sentences

       {¶26} In the second assigned error, Johnson argues the trial court abused its

discretion by imposing consecutive sentences without making the appropriate findings.

       {¶27} We review consecutive sentences using the standard of review set forth in

R.C. 2953.08.     State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307,

2013-Ohio-3809, citing State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10 (holding

that the standard of review set forth by the Ohio Supreme Court in State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, is no longer valid in light of the

enactment of H.B. 86 and the “revival” of statutory findings necessary for imposing

consecutive sentences).

       {¶28} R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn

the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”;

or (2) the appellate court, upon its review, clearly and convincingly finds that “the record

does not support the sentencing court’s findings” under R.C. 2929.14(C)(4). Id., citing

Venes at ¶ 11; R.C. 2953.08(G)(2).

       {¶29} The presumption in Ohio is that sentencing is to run concurrent, unless the

trial court makes the required findings for consecutive sentences set forth in R.C.
2929.14(C)(4). State v. Wells, 8th Dist. Cuyahoga No. 98428, 2013-Ohio-1179, ¶ 11; R.C.

2929.41(A).

       {¶30} Under current R.C. 2929.14(C)(4), when imposing consecutive sentences,

the trial court must first find the sentence is “necessary to protect the public from future

crime or to punish the offender.”      Next, the trial court must find that consecutive

sentences are “not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.” Finally, the trial court must find that one of the

following factors applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction * * *, or
       was under postrelease control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single
       prison term * * * adequately reflects the seriousness of the offender’s
       conduct.

       (c) The offender’s history of criminal conduct demonstrates that
       consecutive sentences are necessary to protect the public from future crime
       by the offender.

R.C. 2929.14(C).

       {¶31} Compliance with this statute “requires separate and distinct findings in

addition to any findings relating to purposes and goals of criminal sentencing.” Venes,

2013-Ohio-1891, 992 N.E.2d 453, at ¶ 17, citing State v. Jones, 93 Ohio St.3d 391, 399,

2001-Ohio-1341, 754 N.E.2d 1252.        The failure to make these findings is “contrary to

law.” Id. at ¶ 12.
       {¶32} In the instant case, a review of the record reveals that the trial court strictly

complied with the requirements of R.C. 2929.14(C)(4). At the sentencing hearing, after

the trial court had heard from the prosecuting attorney, defense counsel, and Johnson, he

explained the purposes and principles of felony sentencing.        The trial court discussed

the seriousness of Johnson’s crimes, the physical harm to the victim, as well as Johnson’s

criminal history. The trial court also pointed out that Johnson had not responded well to

sanctions in the past and had even engaged in drug trafficking soon after he was released

on bond for the instant case.

       {¶33} In relevant part, the trial court stated:

       * * * I’m going to impose these sentences consecutive because the sentence
       is necessary to protect the public from future crimes by you and that the
       consecutive sentence is necessary to punish you for this kind of conduct.

       Further, I don’t believe these sentences are disproportionate to the
       seriousness of this conduct, shooting someone, I think seven to ten times,
       while he’s laying on the street. * * *. Further, I don’t believe these
       sentences are disproportionate in the danger you pose to the public. Tr.
       746-747.

       {¶34} Here, a review of the above excerpt reveals that the trial court found that a

consecutive sentence was necessary to adequately punish Johnson and protect the public.

The trial court also found that consecutive sentences were not disproportionate to the

seriousness of Johnson’s conduct and to the danger he poses to the public as required by

R.C. 2929.14(C)(4).

       {¶35} Finally, the trial court found that at least one of the factors in R.C.

2929.14(C)(4), subsections (a), (b), or (c) applied. Specifically, the trial court stated:
       Furthermore, I think the harm caused by this is so drastic. I mean, when
       you think about this young man, 21 years old, and just simply walking off
       the porch and going out and getting harassed by you and the other
       defendant, I think the sentence deserves consecutive terms. Tr. 747.

       {¶36} After reviewing the sentencing transcript in its entirety, we conclude that the

trial court fully engaged in the required analysis and fulfilled the statutory requirements of

R.C. 2929.14(C)(4) to impose consecutive sentences.          Accordingly, we overrule the

second assigned error.

                             Effective Assistance of Counsel

       {¶37} In the third assigned error, Johnson argues he was denied the effective

assistance of counsel.

       {¶38} To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at 688.

       {¶39} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.” Id. at 689. To establish resulting

prejudice, a defendant must show that the outcome of the proceedings would have been

different but for counsel’s deficient performance. Id. at 694.
       {¶40} Within this assigned error, Johnson argues trial counsel was ineffective for

failing to argue that the photo array was unreliable.

       {¶41} A reviewing court applies a two-prong test in determining whether

identification testimony was admissible. State v. Thompson, 8th Dist. Cuyahoga No.

96929, 2012-Ohio-921.        Under the first prong, the defendant must show that the

identification procedure was unduly suggestive. If we determine that it was, we then

examine “whether the identification, viewed under the totality of the circumstances, is

reliable despite its suggestive character.” Id. at ¶ 18.

       {¶42} R.C. 2933.83 governs eyewitness identification procedures in lineups.

Subsection (B)(1) of the statute provides in part that “[u]nless impracticable, a blind or

blinded administrator shall conduct the live lineup or photo lineup.” A blind administrator

“means the administrator does not know the identity of the suspect.” R.C. 2933.83(A)(2).

“If a blind administrator is conducting the live lineup or the photo lineup, the

administrator shall inform the eyewitness that the suspect may or may not be in the lineup

and that the administrator does not know who the suspect is.” R.C. 2933.83(B)(5).

       {¶43} In the instant case, Johnson argues that the photo array violates R.C.

2933.83 and broadly concludes that a “blind administrator” was not used to conduct the

photo arrays because the arrays exist in a traditional “six-pack” form rather than the

folder system addressed in R.C. 2933.83.       However, Johnson’s argument is misplaced.

       {¶44} We have previously held that R.C. 2933.83 does not require the use of the

“folder system” but, rather, the “folder system” is one system that can be used by law
enforcement for photo lineups. State v. Quarterman, 8th Dist. Cuyahoga No. 99317,

2013-Ohio-4037. See also State v. Wells, 8th Dist. Cuyahoga No. 98388,

2013-Ohio-3722, ¶ 77, citing State v. Winters, 6th Dist. Lucas No. L-12-1041,

2013-Ohio-2370, ¶ 42.

       {¶45} At trial, Detective Bellanca testified that he served as the blind administrator

in presenting photo arrays to Keith on two separate occasions. Detective Bellanca stated

that both times he had no discussion with Keith, other than to read to him the instructions

from the standard blind administrator form. By those instructions, Keith was advised, in

part, that (1) the suspect may or may not be in the array, and (2) Detective Bellanca did

not know who the suspect was.

       {¶46} Detective Bellanca stated that on the first occasion, Keith identified

Johnson’s codefendant from a photo array. Detective Bellanca returned a week later

with another photo array and Keith identified Johnson as the shooter. At trial Keith

stated that (1) no one told him who to pick, (2) no one indicated if his pick was right, (3)

he did not know whether anyone had been apprehended for the shooting, and (4) the

police did not give him any information about the case after he made his identification.

       {¶47} On this record, Johnson has failed to demonstrate that the identification

procedure was unduly suggestive. Because Johnson has failed to demonstrate the first

prong, we need not consider the second prong of whether the identification, viewed under

the totality of the circumstances, is reliable despite its suggestive character. As such,

Johnson has failed to demonstrate that counsel’s performance was deficient.
      {¶48} Within this assigned error, Johnson also argues that counsel was ineffective

for failing to object to the prosecutor’s statement that Johnson shot Keith in the stomach

multiple times as he laid on his back. We find Johnson’s assertion to be without merit.

Keith specifically testified that Johnson shot him in the leg as he was running, causing

him to fall, at which point, Johnson came over and shot him multiple times in the

stomach.

      {¶49} Based on Keith’s testimony, the logical inference is that he was laying on

his back at some point while Johnson was shooting him in the stomach. On this record,

it would be pointless for counsel to object. Again, Johnson has failed to demonstrate that

counsel’s performance was deficient. Accordingly, we overrule the third assigned error.

                           Manifest Weight of the Evidence

      {¶50} In the fourth assigned error, Johnson argues his convictions were against the

manifest weight of the evidence, because the victim’s identification was unreliable.

      {¶51} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court recently addressed the standard of review for a criminal manifest

weight challenge, as follows:

      The criminal manifest-weight-of-the-evidence standard was explained in
      State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. In
      Thompkins, the court distinguished between sufficiency of the evidence and
      manifest weight of the evidence, finding that these concepts differ both
      qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held
      that sufficiency of the evidence is a test of adequacy as to whether the
      evidence is legally sufficient to support a verdict as a matter of law, but
      weight of the evidence addresses the evidence’s effect of inducing belief.
      Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks
      whose evidence is more persuasive — the state’s or the defendant’s? We
       went on to hold that although there may be sufficient evidence to support a
       judgment, it could nevertheless be against the manifest weight of the
       evidence. Id. at 387, 678 N.E.2d 541. “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.” Id. at 387,
       678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211,
       72 L.Ed.2d 652 (1982).

       {¶52} As discussed in the third assigned error, Johnson failed to demonstrate that

the identification procedure was unduly suggestive. Keith identified Johnson as the

shooter from the photo array and was sure of his identification. Keith also identified

Johnson in court. Keith testified that he turned around and looked in Johnson’s eyes

when he felt the gun at the back of his head. Keith also testified that he was looking at

Johnson while being shot multiple times in the stomach.            Keith’s identification of

Johnson was sufficient to support the convictions.         See State v. Jordan, 10th Dist.

Franklin No. 04AP-827, 2005-Ohio-3790, ¶ 14.              Even where discrepancies exist,

eyewitness identification testimony alone is sufficient to support a conviction so long as a

reasonable juror could find the eyewitness testimony to be credible. State v. Bryson, 8th

Dist. Cuyahoga No. 98298, 2013-Ohio-934.

       {¶53} This court is mindful that the weight of the evidence and the credibility of

witnesses are primarily for the trier of fact and a reviewing court must not reverse a

verdict where the trier of fact could reasonably conclude from substantial evidence that

the state has proven the offense beyond a reasonable doubt. State v. Chavez, 8th Dist.

Cuyahoga No. 99436, 2013-Ohio-4700, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), at paragraphs one and two of the syllabus.
      {¶54} Further, because the factfinder has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder’s determinations of credibility.         State v.

Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375, citing State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997). Thus, the

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.

      {¶55} Thus, based on the foregoing, we cannot say that the jury clearly lost its way

and created such a manifest miscarriage of justice that the convictions are against the

manifest weight of the evidence.   Accordingly, we overrule the fourth assigned error.

                               Prosecutorial Misconduct

      {¶56} In his fifth assigned error, Johnson argues that he was materially prejudiced

by improper statements made by the prosecutor during closing arguments.

      {¶57} When reviewing a claim of prosecutorial misconduct during closing

arguments, we first determine whether the remarks were improper. State v. Powell, 132

Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149. “[B]oth the prosecution and the

defense have wide latitude in summation as to what the evidence has shown and what

reasonable inferences may be drawn therefrom.” State v. Lott, 51 Ohio St.3d 160, 165,

555 N.E.2d 293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773

(1970). But “[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.” Lott at 166.

       {¶58} If we conclude that the remarks were improper, we next ask whether the

remarks prejudicially affected the defendant’s substantial rights such that the defendant’s

trial was unfair. Powell at ¶ 149. This requires us to examine the offending comments in

the broader context of the entire case. Id. Our inquiry is guided by concern for “the

fairness of the trial, not the culpability of the prosecutor.” Id., quoting Smith v. Phillips,

455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

       {¶59} Johnson first asserts that the prosecutor incorrectly stated that Detective

Bellanca followed Cleveland Police Department protocol when presenting the photo

arrays, despite Detective Bellanca’s failure to use the “folder system.” In our resolution

of the third assigned error, we pointed out that R.C. 2933.83 does not require the use of

the “folder system” but, rather, the “folder system” is one system that can be used by law

enforcement for photo lineups.

       {¶60} Further, we concluded that Johnson failed to demonstrate that the

identification procedure, which utilized Detective Bellanca as a blind administrator, was

unduly suggestive. As such, we find nothing improper about the prosecutor’s statement

that Detective Bellanca had followed the proper protocol.

       {¶61} Next, Johnson asserts that the prosecutor alluded to matters that were not

supported by evidence.      Specifically, Johnson claims the following statement by the

prosecutor was not supported by the evidence:
       The victim in this matter never named any other individual as the shooter.
       He never named any other individual as his codefendant. It was always
       consistent that it was Junior, and E. He never provided any other suspect
       information. And I submit to you that the testimony of the victim was
       consistent. When he testified in this trial, he gave you a consistent version
       of events of what happened to him. And he never wavered from the fact
       that the individual who shot him, was the defendant in court. That was one
       thing he never wavered from. He maintained throughout his testimony that
       this is the guy who shot him. Tr. 641.

       {¶62} However, the record indicates that above excerpt reflects what the evidence

actually showed. At trial, Detective Harris, who arrived on the scene with Detective

Todd after the shooting, testified that Keith was lying on the ground screaming that he

had been shot. Detective Harris testified that he was unable to get any idea of the

shooter, at that time, because the paramedics were busily trying to save Keith’s life and

that Keith eventually passed out.

       {¶63} Detective Brooks testified that he spoke with Keith a month after the

shooting, while Keith was still in the hospital.      Detective Brooks said that Keith

indicated that “E” shot him and that “Junior” was with “E.” As previously discussed,

Keith identified both Johnson and his codefendant Alexander, Jr., from the photo arrays.

Further, at trial Keith testified that he knew Johnson as “E” and only learned his real

name during the proceedings. Keith also testified that he has known the codefendants

since he was 14 years old.

       {¶64} Here, the above testimony mirrors the statement of the prosecuting attorney

that Keith consistently identified Johnson as the shooter. As such, we find no merit in

this assertion.
       {¶65} Finally, Johnson argues the prosecutor’s characterization of the shooting

was flawed. Specifically, Johnson claims the prosecutor’s assertion that Keith was shot

multiple times in the abdomen as he laid on his back was improper. As previously

discussed, Keith testified that he fell after being shot in the leg and then Johnson shot him

multiple times in the stomach. Again, it is a permissible inference that at some point

while being shot multiple times in his abdomen, Keith would have eventually fallen on

his back, whether after the first or seventh bullet pierced his abdomen.

       {¶66} After, reviewing the record, we see nothing in the complained of statements

during oral argument that amounted to prosecutorial misconduct.            Accordingly, we

overrule the fifth assigned error.

                                     Remmer Hearing

       {¶67} In the sixth assigned error, Johnson argues the court erred by failing to

conduct a hearing pursuant to Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98

L.Ed. 654 (1954), when his grandmother indicated, after the verdict was rendered, that

she knew one of the jurors.

       {¶68} About two weeks after the verdict, defense counsel filed a motion for a

Remmer hearing to determine juror bias. On March 11, 2013, the trial court held a

hearing on the matter and stated in pertinent part as follows:

       * * * I was going to sentence you, but I delayed the sentencing. This is
       after a trial, and I think February 15th of this year. I was going to sentence
       you, and I delayed sentencing because there was an issue with — well, I
       was concerned as to a juror issue. Mr. Dixon, after — and I should really
       be clear on the record what that juror issue was. Your grandmother went
       and saw Juror No. 12 on this case and said to her, Hey, we went to school
       together. And Juror No. 12 didn’t remember, didn’t know, and then
       apparently said, Yeah, we must have. And she notified the Court
       immediately after your grandmother went to her home. The juror called
       the Court, was upset by that kind of conduct. And then I had a sheriff’s
       deputy and the prosecutor call and investigate what has occurred and what
       has happened and what was going on. Tr. 693-694.

       {¶69} At the hearing, Johnson’s grandmother testified that at some point during

the trial she recognized Juror No. 12, but did not notify defense counsel or the the trial

court until after the verdict had been rendered.      Johnson’s grandmother specifically

testified that it was after the verdict was rendered that she went to Juror No. 12’s home to

remind her that they had attended grade school together.

       {¶70} In Remmer, the United States Supreme Court stated:

       In a criminal case, any private communication, contact, or tampering
       directly or indirectly, with a juror during a trial about the matter pending
       before the jury is, for obvious reasons, deemed presumptively prejudicial, if
       not made in the pursuance of known rules of the court and the instructions
       and directions of the court made during the trial, with full knowledge of the
       parties. The presumption is not conclusive, but the burden rests heavily
       upon the Government to establish, after notice to and hearing of the
       defendant, that such contact with the juror was harmless to the defendant.

Id. at 229.

       {¶71} Nonetheless,

       due process does not require a new trial every time a juror has been placed
       in a potentially compromising situation. * * * Due process means a jury
       capable and willing to decide the case solely on the evidence before it, and
       a trial judge ever watchful to prevent prejudicial occurrences and to
       determine the effect of such occurrences when they happen. Such
       determinations may properly be made at a hearing like that ordered in
       Remmer * * *.
State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223 (8th Dist.),

quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

      {¶72} Pivotally, the contact with the juror occurred after the verdict had been

rendered.   There was no allegation that any private communication occurred with

Johnson’s grandmother and Juror No. 12 during the trial. In addition, as pointed out by

the trial court, Juror No. 12 indicated that she did not immediately remember having gone

to school with Johnson’s grandmother.

      {¶73} Under the circumstances of the instant case, the need for a Remmer hearing

was not warranted. As such, the trial court did not err when it denied the motion for a

Remmer hearing. Accordingly, we overrule the sixth assigned error.

      {¶74} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
