[Cite as State v. Bolware, 2018-Ohio-4434.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                :   APPEAL NOS. C-170691
                                                              C-170692
        Plaintiff-Appellee,                   :               C-170693
                                                  TRIAL NOS. B-1403009
  vs.                                         :              B-1503778
                                                             B-1702916
KEVIN BOLWARE,                                :
                                                          O P I N I O N.
     Defendant-Appellant.                     :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Sentences Vacated in Part, and
                             Cause Remanded

Date of Judgment Entry on Appeal: November 2, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                   O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Presiding Judge.

       {¶1}    In five assignments of error, defendant-appellant Kevin Bolware

claims that he was improperly found guilty of and sentenced for felonious assault.

For the reasons set forth below, we affirm Bolware’s conviction, but remand the

cause to the trial court for further proceedings relating to the imposition of

consecutive sentences.

                                 Differing Accounts

       {¶2}    Bolware met the victim in this case in the fall of 2016. The two would

meet a few times a month for sex. On February 10, 2017, the victim invited Bolware

to her apartment. After engaging in intercourse, the two began to argue. The victim

testified that Bolware punched her in the side of the head. The victim retrieved

pepper spray from a drawer and sprayed Bolware with it. The victim testified that

Bolware then started to leave, but turned and resumed his assault. According to her,

he punched her numerous times and clawed at her eyes. He then stomped on her

while she was on the ground.

       {¶3}    A neighbor testified that she heard the commotion and came to

investigate. She saw Bolware standing over the victim and could smell the pepper

spray in the air. She testified that she saw Bolware stomping on the victim and

striking her several times. She yelled for Bolware to leave the victim alone, and

Bolware fled from the apartment with the victim’s cell phone and keys. A few hours

later, the victim’s eyes began to swell and she went to the hospital. The victim

suffered bruising, cuts, lacerations, and four broken ribs. An initial report was taken

by a police officer at the scene, but further investigation did not occur until later

when the victim identified Bolware as the assailant.        Both the victim and the

neighbor identified Bolware from a photo array.



                                          2
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

       {¶4}    Bolware was indicted, in the case numbered B-1702916, for one count

of felonious assault and one count of aggravated robbery. As a result of the charges

and additional violations, his community control in the cases numbered B-1403009

and B-1503778 was terminated. The B-1702916 matter proceeded to a jury trial. At

the conclusion of the trial, Bolware was found guilty of felonious assault, but

acquitted on the charge of aggravated robbery. He was sentenced to eight years in

prison, which he was ordered to serve consecutively to the prison terms imposed in

the cases numbered B-1403009 and B-1503778, which had been ordered to be served

consecutively to each other.

                      Prosecutorial Misconduct—No Prejudice

       {¶5}    In the first two assignments of error, which he has argued together,

Bolware attack statements made by the prosecutor during the course of the trial.

After each statement, defense counsel had objected and requested a mistrial. The

first assignment of error claims that the trial court abused its discretion when it

failed to grant a mistrial as a result of the comments. The second assignment of

error claims that the statements deprived him of a fair trial. We will address the

assignments together.

       {¶6}    Bolware groups the first two instances together as attempts by the

prosecutor to improperly refer to his criminal history. The first instance occurred

during voir dire when the prosecutor said, “You are not allowed to know things about

the defendant.    You are not allowed to know what if any criminal history the

defendant has. You are not allowed to know information that may be obtained

through investigative sources to determine the defendant’s background.” During

opening statements, the prosecutor told the jury that Bolware was identified when

the victim and witness reviewed a packet of information “used by police where they

put a series of mug shots together of people.”

                                           3
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

       {¶7}    Bolware groups the second two instances together as improper

attempts to denigrate defense counsel during rebuttal closing argument. In the first

instance, the prosecutor said,

       [W]hat I have struck about [sic] in this case, it finally hit me, was when

       [defense counsel] said to you—he talked to about the lie right from the

       start. * * * What was the lie? You sat here and you listened to it

       yesterday * * * when [defense counsel] stood up and told you about the

       case. He talked to you about legs being grabbed, he talked about the

       victim doing drugs, being a cokehead, doing cocaine * * *.

The second instance occurred a few moments later when the state characterized the

defense’s case as the “nutty and slutty” defense.

       You heard all these things come out of defense counsel’s mouth * * *

       His explanation of this case was a raging prostitute that was upset that

       one of her johns wouldn’t come and stay with her * * * Did you hear

       one scintilla of evidence to support that argument? Did anyone have

       the moral courage to sit in that witness chair and say “this woman was

       a prostitute?”

       {¶8}    But even if we were to conclude that the remarks cited were improper,

they did not prejudicially affect Bolware’s substantial rights. The granting or denial

of a motion for a mistrial rests in the sound discretion of the trial court and will not

be disturbed on appeal absent an abuse of discretion. State v. Treesh, 90 Ohio St.3d

460, 480, 739 N.E.2d 749 (2001). To show an abuse of discretion in failing to grant a

mistrial, the defendant must demonstrate material prejudice. See State v. Adams,

144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. Similarly, the test for

prosecutorial misconduct is whether the remarks were improper and, if so, whether

they prejudicially affected the accused's substantial rights. See State v. Drummund,


                                           4
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 226, citing State v. Smith, 14

Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984). The touchstone of our analysis “is the

fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.

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

       {¶9}    Each instance represented an isolated comment in a trial that

spanned several days. “[I]solated comments by a prosecutor are not to be taken out

of context and given their most damaging meaning.” State v. Gapen, 104 Ohio St.3d

358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 106, citing Donnelly v. DeChristoforo, 416

U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Thus, “[n]ot every intemperate

remark by counsel can be a basis for reversal.” State v. Landrum, 53 Ohio St.3d 107,

112, 559 N.E.2d 710 (1990). And there can be no prejudice where the remaining

evidence of guilt is so overwhelming that the outcome of the case would have been

the same regardless of evidence admitted erroneously. State v. Williams, 38 Ohio

St.3d 346, 349, 528 N.E.2d 910 (1988).

       {¶10}   In this case, the instances cited by Bolware were not so significant

that they deprived him of a fair trial. None of the comments became recurring

themes in the case, and they were not repeated. Furthermore, the evidence against

Bolware was such that we do not question the guilty finding the jury reached. The

trial court did not err when it denied Bolware’s motions for a mistrial, and he was not

denied his right to due process by comments made by the prosecutor. We overrule

Bolware’s first and second assignments of error.

                       Sufficiency and Weight of the Evidence

       {¶11}   Bolware argues his third and fourth assignments of error together. In

his third assignment of error, Bolware claims that his conviction was based upon

insufficient evidence. In his fourth assignment of error, he claims that his conviction

was contrary to the manifest weight of the evidence. We disagree.

                                            5
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

       {¶12}    In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the

evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,

consider the credibility of the witnesses, and determine whether the trier of fact

clearly lost its way and created a manifest miscarriage of justice. Id.

       {¶13}    Bolware’s argument centers solely on the relative value of the

evidence. He claims that neither the victim’s account nor the testimony of the

witness was credible. He argues that the fact that she delayed seeking medical

treatment discredited the victim’s account of the events. And he argues that there

was no physical evidence in the apartment to support the victim’s claim.         But

arguments based on the value of the evidence and the credibility of witnesses are not

proper on review of evidentiary sufficiency. State v. Yarbrough, 95 Ohio St.3d 227,

2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Nothing Bolware has argued supports his

contention that his conviction was based upon insufficient evidence. We overrule

Bolware’s third assignment of error.

       {¶14}    Turning to Bolware’s manifest-weight argument, we note that

reversing a conviction as being against the manifest weight of the evidence should be

reserved for only the most “ ‘exceptional case in which the evidence weighs heavily

against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus. The

jury, as the trier of fact, is in the best position to judge the credibility of the

witnesses.     See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),


                                           6
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

paragraph one of the syllabus. After reviewing the record, we hold that there was

nothing about the testimony presented by the victim and the witness which would

make their version so incredible that it indicates the jury lost its way. We also cannot

conclude that the jury created a manifest miscarriage of justice by choosing to find

the testimony of the state’s witnesses credible. See Thompkins at 386. We overrule

Bolware’s fourth assignment of error.

                        Consecutive Sentences Unsupported

       {¶15}   In his final assignment of error, Bolware claims that the trial court

failed to make the appropriate findings when sentencing him to consecutive prison

terms. We agree.

       {¶16}   At the sentencing hearing, the trial court did not make any findings to

support its decision to order Bolware to serve his sentence in the case numbered B-

1702916 consecutively to the sentences imposed in the cases numbered B-1403009

and B-1503778, but findings were incorporated into the trial court’s sentencing

entry. Consecutive sentences may be imposed only if the trial court makes the

required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. In order to impose consecutive terms

of imprisonment, a trial court must make the statutory findings mandated for

consecutive sentences under R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate those findings into its sentencing entry. Bonnell at syllabus.

       {¶17}   The state noted that the prosecutor mentioned factors that could have

supported the imposition of consecutive sentences and that “[w]hile the trial court

did not repeat the prosecutor’s statements, they completely justify the imposition of

a maximum, consecutive sentence.” That is insufficient. There is no indication that

the trial court agreed with the statements the prosecutor made or adopted the

statements as its own.     Accordingly, we must vacate the consecutive nature of

                                           7
                    O HIO F IRST D ISTRICT C OURT OF A PPEALS

Bolware’s sentences and remand the cause for the trial court to consider whether

consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make

the required findings on the record and incorporate those findings in the sentencing

journal entry. We sustain Bolware’s fifth assignment of error.

                                      Conclusion

       {¶18}   Having considered each of Bolware’s assignments of error, we affirm

the judgments of the trial court in part, vacate the sentences in part, and remand the

matter for further proceedings.

         Judgments affirmed in part, sentences vacated in part, and cause remanded.

ZAYAS and MYERS, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            8
