[Cite as State v. Crawford, 2012-Ohio-3595.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.     24833

v.                                                     :            T.C. NO.    09CR879

DAMON CRAWFORD                                         :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                               ..........

                                               OPINION

                         Rendered on the        10th       day of      August       , 2012.

                                               ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

J. ALLEN WILMES, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                               ..........

FROELICH, J.

        {¶ 1}      Damon Crawford was convicted after a jury trial of murder with a firearm

specification. Crawford appeals from his conviction, raising three assignments of error.
                                                                                              2

For the following reasons, the trial court’s judgment will be affirmed.

                     I. Factual Background and Procedural History

       {¶ 2}     In the early morning of October 31, 1993, Ebony (“Punkin”) Fisher was shot

in the head while he was seated in a car in the parking lot of Spunky’s bar. Several

witnesses saw a man running away in the field adjacent to the bar’s parking lot. Soon

thereafter, Crawford was apprehended and arrested by Montgomery County deputy sheriffs

and returned in a cruiser to Spunky’s parking lot. Crawford was subsequently taken to the

Jefferson Township police station and questioned by the Jefferson Township police about

the shooting. After receiving Miranda warnings, Crawford invoked his right to counsel and

to remain silent and was later released. No one was prosecuted for the murder at that time.

       {¶ 3}     In January 2008, Detective Brad Daugherty reopened the investigation of

Fisher’s Halloween 1993 murder. He spoke with the original witnesses as well as newly

discovered witnesses and, in April 2009, after communicating with Crawford’s parole

officer, Daugherty questioned Crawford at the Adult Parole Authority’s office. Crawford

made incriminating statements during the interview.

       {¶ 4}     In August 2009, Crawford was indicted for murder with a firearm

specification.   Crawford moved to suppress the statements that he made to his parole

officers and Daugherty. After a hearing, his motion was denied. In a separate ruling, the

trial court did suppress the 1993 identification of Crawford by two witnesses.

       {¶ 5}     The case was tried to a jury in October 2010; that trial ended in a hung jury.

Prior to a second trial, Crawford renewed his motion to suppress. The court again denied

the motion. A second jury trial was held in August 2011, at which time Crawford was
                                                                                                                                   3

convicted of the murder charge and the firearm specification. The court sentenced him to

15 years to life for the murder, plus an additional three years for the firearm specification.

         {¶ 6}       Crawford appeals from his conviction, raising three assignments of error.

                                               II. Motion to Suppress

         {¶ 7}       In his first assignment of error, Crawford claims that the trial court erred in

failing to suppress his statements to Detective Daugherty.1

         {¶ 8}         In reviewing the ruling on a motion to suppress, an appellate court must

accept the trial court’s supported findings of fact as true.                                 State v. Dudley, 2d Dist.

Montgomery No. 24904, 2012-Ohio-960, ¶ 6. The court must then determine whether the

facts satisfy the applicable legal standard; this is done without deference to the conclusion of

the trial court. Id.

         {¶ 9}         At the suppression hearing, the State presented the testimony of Krista

Burke and Jason Butler, both of the Adult Parole Authority (“APA”), and Detective

Daugherty of the Montgomery County Sheriff’s Office. Their testimony established the

following facts.

         {¶ 10}        In November 2008, Burke became Crawford’s parole officer after his

release from prison on drug-related and weapon-related offenses. Burke initially met with


             1
                 The day before oral argument in this case, Crawford filed a pro se “Motion for Leave to Add to and Clarify
   Appellant’s Brief.” In his motion, Crawford asserts that the trial court incorrectly concluded that he was not in custody, that he
   was free to leave, that he had not unequivocally asked for an attorney, and that Miranda warnings were not required because he
   was not being detained for the homicide when he was questioned by Daugherty. We do not consider pro se briefs filed by
   appellants who are represented by counsel on appeal. E.g., State v. Hall, 2d Dist. Montgomery No. 22788, 2009-Ohio-4601,
   ¶ 2. Accordingly, Crawford’s motion for leave is overruled. Regardless, the issues that Crawford attempts to raise are well
   presented in the brief filed by his counsel.
                                                                                            4

Crawford at the Montgomery County Jail, at which time Burke reviewed with Crawford the

conditions of his parole. These conditions included that Crawford refrain from using illegal

drugs and alcohol, that he be subject to random urine screens, and that he agree to

warrantless searches of his person, vehicle and residence by a supervising officer or other

employee of the Department of Rehabilitation and Corrections. Crawford signed a form,

acknowledging these conditions.

       {¶ 11}    On March 9, 2009, Crawford came into Burke’s office for a scheduled

meeting, including a drug test. After Crawford failed the drug screening, he began to yell

that people were trying to kill him and “you're not listening to me and I'm asking for help

here.” Crawford made “erratic comments” that Burke did not understand. Burke had

Crawford walk back to her office so that she could address his failure to comply with his

drug treatment program. Along the way, she asked Butler, another parole officer who knew

Crawford, to walk with them and to help calm down Crawford.

       {¶ 12}    Once in Burke’s office, Crawford asked for protection due to his belief that

he was being investigated for a murder and that people were trying to kill him. Crawford

told the parole officers that he had been at a bar named Spunky's on Halloween in 1992 or

1993, that he was pulled over by the police as he was walking home, and that he thought he

was going to prison. Crawford told the officers that he was “real high” that night and had

fallen asleep in the police cruiser, and he woke up when the cruiser was at a murder scene.

Crawford stated that he was taken to jail and questioned, but was later released. Crawford

stated that people had been trying to kill him since that time. Crawford also told Burke that

he was taking notes and writing the story of his life, and he wanted to show the notes to her.
                                                                                         5

Burke and Butler had not previously heard about the murder; when Crawford left, Burke told

him to talk to her supervisor the following day.

       {¶ 13}    The following day, Crawford returned with his notebook and spoke with

Burke, Burke’s supervisor, and Butler. Butler made a copy of the notebook and returned

the original to Crawford. After Crawford left, Burke contacted the Sheriff's Office to look

into Crawford's claims. The following day, she spoke with Detective Daugherty, who

informed her that he was investigating a cold case murder at Spunky's and that he had been

interviewing people about the crime. Daugherty speculated that Crawford may have heard

about the investigation.

       {¶ 14} In mid-April 2009, Crawford was reassigned to Butler. On the morning of

April 27, Detective Daugherty contacted Butler and told him that a confidential informant

stated that there were weapons and drugs in Crawford’s residence. Daugherty also told

Butler that Crawford was a suspect in Fisher’s murder and that he wanted to speak with

Crawford.    Daugherty and Butler planned to go together to Crawford’s apartment that

afternoon.

       {¶ 15} By coincidence, Crawford came unexpectedly to Butler’s office later that

morning, and he asked Butler to copy a journal that he (Crawford) had. Crawford talked

about needing protection. Butler contacted Daugherty and told the detective that Crawford

was at the parole office. Daugherty stated that he would be there in five to ten minutes.

Before the detective arrived, Butler asked Crawford, “Would you be willing to talk to the

detectives without a lawyer present?” Crawford responded, “Yes. I want to get my story

out there and I want to let them know what’s going on with me.” Butler explained to
                                                                                          6

Crawford that he was not under arrest at that point; Butler did not inform Crawford of his

Miranda rights.

       {¶ 16} Daugherty and another detective, both in plain clothes, arrived within a few

minutes. At Butler’s suggestion, they moved to a small conference room, which was also

located in a secure area of the office. Daugherty testified that he advised Crawford that he

was not under arrest, and Crawford went back and forth about wanting a lawyer.

       {¶ 17}     Without Crawford’s knowledge, Daugherty audio-recorded the interview.

The trial court described portions of the audiotape, stating:

       * * * The audio of the interview reveals that in the first two and a half

       minutes of the encounter, Defendant stated three times that he wanted an

       attorney, but continued to converse with Daugherty. During this time, no

       questions were asked regarding the homicide. Daugherty testified, and the

       audio confirmed, that * * * he asked Defendant, “Here’s the question,

       Damon. Do you want to talk with us without an attorney?” The audio

       provided in State’s Exhibit 5 confirms that Defendant said, “yes.” Defendant

       was also told at two minutes and fifty seconds that he was not under arrest

       and was free to leave.       Defendant stated that he wanted to talk to the

       detectives. Defendant then proceeded to answer the detective’s questions

       and elaborate on why people were trying to kill him. This information was

       similar to what Defendant had written in the journal that he gave to Butler to

       copy. [Approximately 12 minutes into the interview, Crawford said that he

       was “cool with them Arlington Court people so they know I ain’t killed
                                                                                           7

       Punkin yet.”] At approximately 31 minutes into the interview, Defendant

       states that he wants to go [to] the job center, and 35 minutes into the

       interview, Defendant stated that he was through with Daugherty. A couple

       of minutes later, he stated that he wanted an attorney. The interview then

       ended * * *.

       {¶ 18} Based on information that Crawford had possible drugs and guns at his

residence, Butler handcuffed and detained Crawford in order to investigate those allegations.

Butler testified that Crawford’s detention was unrelated to the murder investigation.

       {¶ 19} Butler and another parole officer took Crawford to his residence; the parole

officers were followed by Detective Daugherty in a separate vehicle. Daugherty stood and

chatted with Crawford outside the residence while Butler searched inside. After suspected

heroin was located, Crawford was detained by the parole officers on a parole violation, and

Daugherty took the suspected drugs in order to pursue new drug charges against Crawford.

       {¶ 20} After Crawford was indicted for murder, Crawford moved to suppress the

statements that he made to Daugherty and to his parole officers. The trial court found that

Crawford’s statements to the parole officers on March 9, March 10, and April 27 were

voluntary and not the product of custodial interrogation. As for Crawford’s statements to

Daugherty on April 27, the trial court found Crawford did not unequivocally invoke his right

to counsel prior to speaking with Daugherty and that Crawford was not subject to custodial

interrogation when he was being questioned by the detective. In a footnote, the trial court

noted that Crawford’s invocation of his right to counsel in 1993 did not invalidate the

statements he made in 2009.       Finally, the court found that Crawford’s statements to
                                                                                             8

Daugherty outside of his (Crawford’s) residence were unsolicited and did not require

suppression.

       {¶ 21}    The Fifth Amendment to the United States Constitution provides that “[n]o

person * * * shall be compelled in any criminal case to be a witness against himself.” The

United States Supreme Court has held that the State may not use statements stemming from

a defendant’s custodial interrogation unless it demonstrates the use of procedural safeguards

to secure the defendant’s Fifth Amendment privilege against self-incrimination. Miranda v.

Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To counteract the

coercive pressure of custodial interrogations, police officers must warn a suspect, prior to

questioning, that he has a right to remain silent and a right to the presence of an attorney.

Maryland v. Shatzer,         U.S.       , 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010),

citing Miranda, 384 U.S. at 444. “After the warnings are given, if the suspect indicates that

he wishes to remain silent, the interrogation must cease. Similarly, if the suspect states that

he wants an attorney, the interrogation must cease until an attorney is present.” Id.

       {¶ 22} A defendant may waive his Miranda rights. Id. However, in order for a

defendant’s statements made during a custodial interrogation to be admissible, the State

must establish that the accused knowingly, voluntarily, and intelligently waived his or her

rights. Miranda, supra; State v. Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976),

overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

       {¶ 23}    In contrast to a defendant’s Fifth Amendment rights, “the Sixth

Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of

the criminal proceedings,” including any police interrogation that occurs after an adversary
                                                                                           9

judicial process has been initiated. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct.

2079, 173 L.Ed.2d 955 (2009). Unlike a defendant’s right to counsel under Miranda, a

defendant need not be in custody in order to assert his Sixth Amendment right to counsel, so

long as an adverse criminal proceeding has begun. Patterson v. Illinois, 487 U.S. 285, 290,

298-99, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).          To be clear, this case implicates

Crawford’s Fifth Amendment rights, not his rights under the Sixth Amendment.

       {¶ 24} First, we agree with the trial court that Crawford’s invocation of his right to

counsel following his arrest in 1993 did not preclude Daugherty’s 2009 questioning. A

defendant’s invocation of his Fifth Amendment right to counsel ends when there has been a

break in custody sufficient to eliminate the coercive effects of police custody. See Shatzer,

supra (where, after a 14-day break in “Miranda custody,” police were permitted to question

defendant, even though defendant had previously invoked his right to counsel and was in

prison at the time on another matter). In this case, there was a 16-year delay between

Crawford’s initial questioning by the police, during which he invoked his right to counsel,

and Daugherty’s questioning in April 2009. Crawford’s invocation of his Fifth Amendment

right to counsel in 1993 did not preclude Daugherty from attempting to question him without

counsel in 2009.

       {¶ 25} Second, the trial court did not err in concluding that Crawford was not in

custody while he was questioned by Daugherty at the APA offices regarding Fisher’s

murder. The record reflects that Crawford voluntarily and unexpectedly came to the APA

offices on April 27 in order to talk with Butler and to provide a copy of his journal. When

Butler asked Crawford if he would be willing to talk with detectives without an attorney,
                                                                                             10

Crawford agreed. Crawford was informed by Butler prior to the detective’s arrival and by

Daugherty within a few minutes of beginning the interview that he (Crawford) was not under

arrest and that he was free to leave. Although Butler indicated that his office and the

conference room were located in a secure area of the APA offices (i.e., a locked door

separated the parole officers’ offices from the waiting area), there is no suggestion that

Crawford could not have left if he wished. Butler subjectively intended to detain Crawford

for the parole violation after the interview ended, but there was no evidence that Crawford

was aware of that intention when the interview began, and Crawford was not, in fact,

detained until near the end of the interview with Daugherty. Based on the record, the trial

court reasonably concluded that Crawford was not in custody when he spoke with Detective

Daugherty about Fisher’s murder on April 27, including during the time that Crawford stated

that he “ain’t killed Punkin yet.” Accordingly, Crawford was not entitled to Miranda

warnings prior to questioning by Daugherty, and the detective was not obligated to cease

questioning Crawford when Crawford initially indicated that he wanted counsel.

       {¶ 26} The trial court found that the interview concluded shortly after Crawford

expressed that he wished to go to the job center and then requested an attorney.

Approximately 30 minutes into the interview, Crawford indicated that he wanted to go to the

job center, and he was told by Daugherty and Butler that he would be given a ride home.

After a few additional questions related to Fisher’s murder, Crawford asked for a lawyer and

said he wanted the copy of his journal back.         Butler then asked Crawford if he had

contraband at his residence, and Crawford was subsequently handcuffed before being taken

to his residence. Butler reiterated to Crawford that he was not under arrest at that time.
                                                                                            11

       {¶ 27} Whether Crawford was in custody at the conclusion of the interview when

he was handcuffed presents a closer question than whether Crawford was in custody when

the interview began.      Regardless, none of the statements that Crawford made at the

conclusion of the interview were used against him by the State at trial. Accordingly, any

error in the court’s failure to suppress the statements Crawford made at the conclusion of the

interview was harmless.

       {¶ 28} The first assignment of error is overruled.

                           II. Manifest Weight of the Evidence

       {¶ 29} Crawford’s second assignment of error claims that his conviction was

against the manifest weight of the evidence. He asserts that the State’s witnesses, many of

whom were recently released from prison, were not credible.

       {¶ 30}    “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.”       State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 12. When evaluating whether a conviction is contrary to the manifest

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

 State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Elmore, 111

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 44.
                                                                                                 12

       {¶ 31}         Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). However, we may determine which of several competing inferences suggested

by the evidence should be preferred. Id.

       {¶ 32}         The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 33} The State’s evidence at trial revealed the following facts:

       {¶ 34}         At approximately 3:00 a.m. on October 31, 1993, Fisher was shot in the

head while he was seated in the passenger seat of Deon Cunningham’s silver Oldsmobile

Delta in the parking lot of Spunky’s, a night club formerly located at the intersection of

Derby Road and Germantown Pike. The bullet entered above Fisher’s right ear and traveled

down and to the left, causing fatal injuries.

       {¶ 35}         Kirby Ben-Israel2 (fka Kirby Peterson) testified that he, Crawford, Lamar

Lenore, Darryl Jones, and two women drove around to different bars on the night of October

31, 1993. All of the men were drug dealers and all carried guns. Ben-Israel stated that they

arrived at Spunky’s around closing time and parked “to the right and to the rear of the silver

car that’s parked there.” Ben-Israel, Lenore, and Jones got out and walked around together;

Crawford got out of the Ben-Israel’s car and went off separately. The three men saw Fisher


           2
               The transcript incorrectly identifies this witness as Kirby Benezra.
                                                                                          13

in the parking lot and spoke with him about rumors that he was targeting and robbing drug

dealers. After a few minutes, the conversation ended, and Fisher walked over to and got

into the front passenger side of the silver car; another man, (who other witnesses identified

as Cunningham) was seated in the driver’s seat. Ben-Israel briefly stood by the car and saw

Fisher talk on a car phone.

       {¶ 36}    Ben-Israel testified that he then saw a man, whom he believed was

Crawford, run up to the silver car and shoot Fisher with a “bright” revolver through the

“cracked” (i.e., partially open) door. Although the shooter was masking his face, he was

wearing the same clothes that Crawford had been wearing that night – maroon sweatpants

and a black athletic jacket with “Sox” on the back. After the shooting, the shooter ran past

the fence separating the property from a field. Ben-Israel, Lenore, Jones, and the women

left in Ben-Israel’s vehicle; Ben-Israel did not see Crawford again that night.

       {¶ 37} Ben-Israel further testified that he later talked with Crawford about the

shooting. Crawford had stated that he buried the gun in some leaves and that his brother

had retrieved the gun for him. Crawford also reportedly stated that he shot Fisher because

“he seen the opportunity and he took it” and “he can’t negotiate with a guy like that.”

Crawford stated that he “did everybody a favor.”

       {¶ 38}    Approximately 100 to 150 people were in the parking lot area at the time of

the shooting, including Jefferson Township Police Chief Leon Frazier, Officer Steven

Gephart, Darren Byrd, Kevin Byrd, and Paul Harrington.

       {¶ 39} Harrington testified that, as he was leaving Spunky’s around closing time on

October 31, 1993, he was looking for his friend, Cunningham, who had left shortly before
                                                                                                      14

him. As he and a friend made their way to Cunningham’s car, they saw Fisher talk to

Cunningham and get into the front passenger seat. Fisher left the door open and used

Cunningham’s phone. Harrington saw someone wearing a hood walking toward the car

from along the fence line; as the person got closer, Harrington recognized that it was

Crawford. A few seconds later, Harrington heard a shot. Harrington saw Crawford “raise

up from the back passenger door area and turn and take off and run * * * down the fence line

area and ran through the field.” Harrington recalled that Crawford had a black hoodie

jacket with white lettering on the back and that Crawford was wearing gloves.

       {¶ 40} Darren Byrd testified that he was employed as a bouncer at Spunky’s on

October 31, 1993. As he was trying to disperse people from the area, he saw a silver car

pull up near the building, playing music loudly. Darren3 saw Frazier (who was off-duty and

providing security for Spunky’s) approach the car and tell the driver to turn the music down.

 A few minutes later, Darren heard a single “pop” in the area of the silver car and heard a

man say, “I’ve been shot.” Darren observed that the car door was open, and he saw a man

walking toward the back of the vehicle. Darren did not see the person’s face, but the man

was wearing a jacket with an “applique or something” on the back of a black jacket. The

man walked along the fence line. At the time of the offense, Darren further recalled that the

man had also worn a dark hooded sweatsuit, had “[s]omething shiny at his side,” and “[took]

off running.”

       {¶ 41} Kevin Byrd was employed at Spunky’s to provide inside security.                         At

around 2:30 a.m., when the bar closed, Byrd began dispersing people to their cars. Soon


          3
              To avoid confusion, we will refer to Darren Byrd and Kevin Byrd by their first names.
                                                                                           15

after, a fistfight broke out in the middle of the parking lot; Kevin and other security

personnel went to break up the fight. Kevin left the altercation and began walking back

toward the front entrance while the rest of the security personnel handled the fight. As he

neared the front door, Kevin heard a gunshot and saw a man (who others identified as

Cunningham) “jump out” of the driver’s side and yell that he had been shot. When Kevin

approached to see what was going on, the man said that “Punkin” was in the car.

        {¶ 42}   As Kevin went to the car, he saw another man “running around the fence

line from that area and going around the fence” into a large field. The man was wearing

maroon pants and a dark-colored jacket with “a big insignia on the back. Kind of looked

like it might have said Sox or White Sox or something on the back.” The man was carrying

something that looked like a 9 mm or 45 mm silver handgun. Kevin testified that other

patrons ran to their cars when they heard the gunshot, but he did not see anyone else run into

the field.

        {¶ 43} Officer Gephart was seated in his police cruiser in the Spunky’s parking lot

at the time of the shooting, and he drove to the location of Cunningham’s car based on a

radio call from Frazier that there had been a shooting by the front door. When Gephart

arrived at Cunningham’s car, he noticed that all of the vehicle’s windows were closed and

unbroken. Gephart looked in and around the vehicle for the bullet, shell casing, and gun; he

did not find them at the scene. After the vehicle was moved to a garage at the Sheriff’s

Office, a very small portion of the bullet was located in the dashboard. Gephart also

obtained fingerprints from the exterior of the car, and a hair was collected from the exterior

handle of the front passenger door.
                                                                                          16

       {¶ 44} While at the scene, Gephart heard a broadcast on his police radio that a man

was seen fleeing from the scene and heading north across the field adjacent to Spunky’s

parking lot. Within thirty minutes, Gephart heard that a Montgomery County sheriff’s

deputy had apprehended a suspect, who was later identified as Crawford.

       {¶ 45} Crawford was taken into custody at 3:30 a.m. near the intersection of

Gettysburg Avenue and Germantown Pike, at which time his clothing was collected. His

clothing consisted of a White Sox Starter jacket with a hood, a hooded sweatshirt, gym

shoes, and maroon sweatpants. Crawford’s hands were tested for gunshot residue, but none

was detected. He was subsequently released.

       {¶ 46}   Scott Moore testified that he spoke with Crawford in 1994, after his

(Moore’s) release from prison. Crawford told Moore that he discovered who had broken

into his (Crawford’s) grandmother’s home and that he “took care of the person who did it” in

Spunky’s parking lot on Halloween night in 1993. Moore testified: “He told me the club

had let out that night and he just saw Ebony Fisher, had saw Punkin in the parking lot and he

said he watched him get into somebody’s car and get on the telephone. And he said he

decided to take him out at that point in time.” Crawford told Moore that he had come from

Marable’s night club, which was near Spunky’s, came along the passenger side of the car

from the rear, stuck the gun in the car, and shot Fisher in the head with a .357 magnum.

Crawford said he was wearing a hoodie, gloves, and a jacket. Crawford reported that he ran

through the field after the shooting and discarded the hoodie, gun, and gloves as he ran.

Crawford told Moore that he was apprehended, arrested, taken to jail, and tested for gunshot

residue; Crawford indicated to Moore that the gunshot residue test was negative.
                                                                                           17

       {¶ 47} Finally, Detective Daugherty testified regarding his cold case investigation.

Daugherty reviewed the existing physical evidence and police file and spoke with various

witnesses that were mentioned in the file. In April 2009, Daugherty spoke with Crawford

about the homicide. Crawford stated that he was at Marable’s in the early morning hours of

October 31, 1993, and members of both the Dayton View Hustlers and Arlington Court gang

were there; Crawford was a member of the Dayton View Hustlers. During the conversation,

Crawford stated that he was “still cool” with the Arlington Court gang “because I ain’t killed

Punkin yet.” Crawford also asked for the return of the clothing that was collected from him

in 1993. (On cross-examination, Daugherty further testified that Crawford denied killing

Fisher and that Crawford said he had heard a rumor that Ben-Israel had killed Fisher.)

       {¶ 48} Dion Cunningham testified on Crawford’s behalf. He stated that he went to

Spunky’s around 10:30 or 11:00 p.m. on October 30, 1993, with Harrington and Heath

Harding. While there, he saw Fisher in the club and gave Fisher his phone number. When

the club closed, Cunningham got into his car and pulled around to the front so that he could

find Harrington and Harding. Cunningham was playing music loudly, and security told him

to turn it down. While he was in his car, he saw Fisher walking toward him from the club.

Fisher walked up and asked Cunningham if he could use the phone; Cunningham agreed and

Fisher got into the front passenger seat. Before Fisher could use the phone, three men came

up to Fisher and talked with him through the lowered passenger window. After making

sure the men were not arguing, Cunningham turned his attention to some women with whom

he was talking through his window. Within minutes, Cunningham heard a “loud muffle,

boom,” and saw that Fisher was shot. Cunningham thought he had been shot, too, and
                                                                                           18

panicked.

       {¶ 49} After Cunningham’s testimony, the parties stipulated that gunshot residue

testing (atomic absorption testing) had been performed on Cunningham, Crawford, and

Fisher. The results were negative for Crawford and Fisher, but positive for Cunningham’s

right palm.

       {¶ 50} Crawford claims that the State’s witnesses were not credible and, therefore,

his conviction should be reversed as against the manifest weight of the evidence. Crawford

emphasizes that Ben-Israel had received a 24-year federal prison sentence for drug and

escape charges, but he was released from prison early after cooperating in the investigation

of this and another case; Ben-Israel did not identify Crawford as the shooter until September

1996, when he contacted federal agents and indicated that he would like to cooperate in the

investigation of Fisher’s murder in exchange for help in reducing his sentence. Crawford

further argues that Ben-Israel “couldn’t remember basic facts, e.g. whether the shooting

occurred on Halloween or Thanksgiving,” rendering his testimony not credible.

       {¶ 51} Similarly, Crawford argues that Moore, who was serving a 24-year federal

prison sentence at the time of trial, did not contact the sheriff’s department about Fisher’s

shooting until August 2010, after he heard from Ben-Israel that Ben-Israel had provided

assistance in the investigation of two cold cases.

       {¶ 52}    Harrington also was serving a ten-year prison sentence for drug trafficking

at the time of Crawford’s trial. Although Harrington was questioned by Chief Frazier on

the night of the shooting, he waited until 2008 to tell Daugherty that he “heard a rumor” that

Crawford was the perpetrator and did not expressly identify Crawford as the shooter until
                                                                                             19

2010.

        {¶ 53}    Upon considering all of the evidence at trial, we do not agree that

Crawford’s conviction is against the manifest weight of the evidence.            Although the

witnesses’ testimony varied to some degree and witnesses could not recall some details due

to the passage of time, the State’s witnesses described in a similar manner how the shooter

approached Cunningham’s car, shot Fisher, and fled into the field next to the property.

Several witnesses described Crawford’s clothing on that night and identified Crawford, or a

man wearing clothes consistent with Crawford’s, as the shooter. According to Moore and

Ben-Israel, Crawford confessed to shooting Fisher on Halloween 1993.

        {¶ 54} Though the jury heard that Harrington, Moore, and Ben-Israel had served or

were serving lengthy prison sentences, each explained their reasons for not discussing the

shooting with law enforcement near the time of the shooting. They all admitted that they

had been drug dealers, and Ben-Israel and Harrington expressed that cooperating with the

police would have harmed their reputations or endangered their lives.            For example,

Ben-Israel stated that going to the police “wouldn’t have been a good thing to do back then

for me * * * [b]ecause of the business I was in. That was a conflict.” He stated that he

decided to cooperate “so I can gain my life back.” Harrington explained his failure to

cooperate the past, saying, “I was a lot younger back then and I guess I didn’t feel it was that

important, you know, plus I was in the streets too, so I really wasn’t into telling on nobody or

snitching as they call it.”

        {¶ 55}    Defense counsel thoroughly cross-examined Ben-Israel and Harrington

about their failure to identify Crawford at the time of the shooting and questioned Moore
                                                                                          20

about his significant delay in contacting law enforcement about Crawford’s confession. As

stated above, the credibility of the witnesses and the weight to be given to their testimony

were matters for the jury, as the trier of fact, to determine. Upon review of the record, the

jury’s decision to credit the State's evidence did not create a manifest injustice.

       {¶ 56} The second assignment of error is overruled.

                               III. Prosecutorial Misconduct

       {¶ 57} In Crawford’s third assignment of error, he argues that the prosecutor

engaged in misconduct by disparaging defense counsel’s argument in the State’s rebuttal

closing argument.

       {¶ 58}    In reviewing claims of prosecutorial misconduct, the test is whether the

prosecutor's remarks were improper and, if so, whether those comments prejudicially

affected the substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739

N.E.2d 300 (2000).      “The touchstone of analysis ‘is 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). Where it is clear beyond a reasonable doubt that the jury would

have found the defendant guilty, even absent the alleged misconduct, the defendant has not

been prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d Dist.

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial

misconduct in the context of the entire trial. State v. Stevenson, 2d Dist. Greene No.

2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct.

2464, 91 L.Ed.2d 144 (1986).

       {¶ 59} During the State’s rebuttal closing argument, the prosecutor stated:
                                                                                         21

                And the Defendant tried to beat Scott Moore up pretty bad. He used

       the term “immaculate confession;” didn’t he? Immaculate confession is

       cute; it’s real cute. But let’s talk about what Scott Moore told you and why

       he would be in a position to know and hear what he heard and saw and came

       in and told you. * * * (Emphasis added.)

       {¶ 60} Crawford did not object to the prosecutor’s statement; therefore, he has

waived all but plain error. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d

433, ¶ 175. The plain error rule is to be invoked only under exceptional circumstances in

order to avoid a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 95, 372

N.E.2d 804 (1978). Plain error does not occur unless, but for the error, the outcome of the

trial clearly would have been different. Id. at 97; Crim.R. 52(B).

       {¶ 61} We have cautioned that the prosecution’s wide latitude to argue the relative

strengths of its case and the relative weakness of the defense “does not extend as far as

allowing the prosecution to denigrate the role of defense counsel.” State v. Thompson, 161

Ohio App.3d 334, 2005-Ohio-2508, 830 N.E.2d 394, ¶ 33. While the prosecutor’s use of

the words “real cute” may have been derisive and unnecessary, the record reflects that, by

this isolated statement, the State was not trying to denigrate defense counsel as much as it

was attempting to refute defense counsel’s argument that Moore’s testimony was not

credible, as demonstrated by the extensive discussion of Moore’s testimony that followed.

Upon review of the entire trial, we find no plain error occurred.

       {¶ 62}    The third assignment of error is overruled.

                                       IV. Conclusion
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       {¶ 63} The trial court’s judgment will be affirmed.

                                       ..........

FAIN, J. and FRENCH, J., concur.

(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Andrew T. French
J. Allen Wilmes
Hon. Barbara P. Gorman
