[Cite as State v. Caldwell, 2019-Ohio-3015.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                        No.18AP-814
v.                                                   :             (M.C. No. 2018CRB-19200)

Walter Caldwell,                                     :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.                :



                                               D E C I S I O N

                                       Rendered on July 25, 2019


                 On brief: Zachary M. Klein, City Attorney, Bill R. Hedrick,
                 and Orly Ahroni, for appellee. Argued: Orly Ahroni.

                 On brief: Campbell Law, LLC, and April F. Campbell, for
                 appellant.


                       APPEAL from the Franklin County Municipal Court

BEATTY BLUNT, J.

        {¶ 1} Defendant-appellant, Walter Caldwell, presently appeals from a portion of a

Franklin County Municipal Court judgment entry sentencing him to a six-month sentence

as the result of the jury's finding him guilty of assaulting S.S., his former girlfriend. He

presents three assignments of error for our consideration, and after due consideration of

each, we affirm the municipal court's entry in its entirety.

I. FACTS & PROCEDURAL HISTORY

        {¶ 2} Plaintiff-appellee, State of Ohio, complaint filed on September 16, 2018,

charges Caldwell with "knowingly caus[ing] physical harm to another, to wit: S.S. by
No.18AP-814                                                                                2


punching her with a closed fist in the face at least three times" in violation of Columbus City

Code 2303.13(A). See Compl.

       {¶ 3} Testimony at Caldwell's resultant October 17, 2018 trial revealed as follows.

On the noted date, around 3:00 p.m., Caldwell and S.S., one of his girlfriends at the time,

loudly argued outside the north side branch of the Columbus Public Library at 1423 North

High Street. (Oct. 15 & 16, 2018, Tr. Vol. II at 261, 269; Oct. 17 & 18, 2018, Tr. Vol. III at

508-9.) Their disagreement continued as they entered the facility. (Tr. Vol. II at 269.)

Library employee Daniel Wilkens was at the front desk near the entrance when Caldwell

and S.S. entered. Wilkens asked them to leave, describing their "shouting," profane-laced

interaction as a "violent argument." Caldwell declined to leave, opting instead to

unsuccessfully attempt to hit Wilkens with an object.

       {¶ 4} Caldwell then chased S.S. across the library. Robert Parrish, the security

guard on duty, instructed Caldwell to leave the premises. Caldwell obliged, although he told

Parrish he would "kick his ass" on his way out.

       {¶ 5} Caldwell and S.S. exited the building. Caldwell then threw a box at S.S. but

missed. She returned to the library's entrance. Caldwell attempted to follow her in, but

Parrish exited the library in front of S.S. While Parrish's back was turned, Caldwell lunged

toward S.S. and pushed her to the ground. She freed herself. At that point, Parrish walked

in front of Caldwell. Words were exchanged, and then S.S., who was standing behind

Parrish, sprayed Caldwell with a substance. Caldwell retreated, but then secured the box he

had thrown at S.S. earlier and hit Parrish with the box while Parrish was standing in the

doorway. During a scuffle, Caldwell punched Parrish, who then returned to the inside of

the library. Caldwell proceeded to enter and exit the library twice before finally leaving the

premises. Library officials then locked the doors. (Tr. Vol. II at 294.)
No.18AP-814                                                                              3


       {¶ 6} S.S. began walking towards Newport Music Hall. Caldwell followed and

began hitting her. She escaped, and headed toward a Subway restaurant. She screamed for

someone to call the police. While that call was being made, Caldwell found her and punched

her in the face. She entered Subway and locked herself in the restaurant's bathroom.

Caldwell fled, but thanks to descriptions provided by the five separate individuals who

called 911, Columbus Police Officers Steven Baird and Matthew Brown captured and

arrested him. The foregoing course of events occurred in less than one hour and within one-

half mile of the library's location. (Tr. Vol III at 407-39.)

       {¶ 7} S.S. did not testify. Caldwell did. Caldwell stated that S.S. was one of his

girlfriends at the time of the attack. (Tr. Vol III at 508-9.) He admitted to being with S.S.

all day on September 16, 2018. Id. at 503. He acknowledged following her into the library,

yelling at her, and calling her profane names. Id. at 503, 517. He acknowledged hitting

Parrish. Id. at 506, 526. He said he threw a box containing a wooden gun at S.S. Id. at 503.

He admitted to pushing her, but denied hitting her. Id. at 504, 507. He could not remember

if he went to Subway. Id. at 525.

       {¶ 8} The state charged Caldwell with two counts of assault as to S.S. and Parrish.

See Sept. 16, 2018 Compl. The state additionally levied a domestic violence charge under

Columbus City Code 2919.25 against Caldwell for his alleged punching of S.S., reasoning

that S.S. was his live-in girlfriend on the date in focus. Id.

       {¶ 9} The jury returned a guilty verdict on both assault charges involving S.S. and

Parrish. (See Oct. 19, 2018 Guilty Verdicts). The municipal court granted Caldwell's

Crim.R. 29 motion as to the domestic violence count. The trial judge imposed two

consecutive six-month sentences—one for the assault on Parrish and one for the assault on

S.S.—and this appeal followed as to the latter sentence only.
No.18AP-814                                                                              4


II. ASSIGNMENTS OF ERROR

       {¶ 10} Caldwell presents three claimed errors for our review. Those include the

following:

              [1.] Caldwell's conviction for assault on [S.S.] should be
              reversed: the trial court changed the identity of this offense by
              constructively amending the complaint, which undermined
              confidence in the jury's unanimous verdict.

              [2.] Caldwell's convictions should be reversed because
              Caldwell's Due Process right to a fair trial was denied.

              [3.] Caldwell's convictions should be reversed because of
              prosecutorial misconduct in closing arguments, which
              prejudicially affected Caldwell.

III. THE TRIAL COURT DID NOT AMEND THE COMPLAINT

       {¶ 11} Under the first assignment of error, Caldwell contends he was prosecuted for

three separate incidents of assault, although he was only charged with one, in violation of

Crim.R. 3 and Crim.R. 7. He further argues the trial court's inclusion of evidence regarding

Caldwell's altercations with S.S. at the Newport Music Hall and Subway violated his right

to a unanimous verdict under Crim.R. 31. The state responds that the complaint satisfies

both Crim.R. 3 and Crim.R. 7 such that reversal is not proper under this assignment. The

state also counters that Caldwell's verdict was unanimous because his actions constituted a

single course of conduct. After due review, we conclude that the state's contentions prove

more persuasive.

       {¶ 12} We modify the order of Caldwell's arguments for ease of analysis.

       A. Crim.R. 3

       {¶ 13} Caldwell argues the complaint charged him only with assaulting S.S. at the

library. Yet, Caldwell argues, the municipal court allowed the admission of evidence at trial

regarding the events at Newport Music Hall and Subway, instead of limiting the evidence
No.18AP-814                                                                                 5


to that involving the library interaction. Accordingly, Caldwell contends those admissions

violated Crim.R. 3 by allowing the jury to consider non-essential facts that were not "made

upon oath." (Caldwell's Brief. at 7.) The state counters the Complaint properly encompasses

the Newport Music Hall and Subway encounters, and does so under oath.

       {¶ 14} Crim.R. 3 states "[t]he complaint is a written statement of the essential facts

constituting the offense charged. It shall also state the numerical designation of the

applicable statute or ordinance. It shall be made upon oath before any person authorized

by law to administer oaths." Hence, a plain reading of the rule requires complaints to

contain essential facts, reference applicable statutes or ordinances and be sworn.

       {¶ 15} "The purpose of a complaint filed in a criminal case is to provide reasonable

notice to the defendant of the nature of the offense." State v. Andrews, 10th Dist. Franklin

No. 98AP-1098, 1999 Ohio App. LEXIS 3552, *3 (Aug. 5, 1999), citing State v. Sweeney, 72

Ohio App.3d 404, 406 (10th Dist. 1991). "A complaint provides sufficient notice to the

defendant by including the nature of the offense, the time and place of the alleged offense,

the statutory language, the statute number, and a brief description of the conduct alleged,

thus stating all of the essential elements of the offense." Andrews at *3, citing Sweeney at

406.

       {¶ 16} Here, the complaint at issue details: (1) assault as the nature of the offense;

(2) September 16, 2018 as the date of the offense; (3) the State of Ohio, County of Franklin

and City of Columbus as the jurisdiction in which the offense occurred; (4) the statutory

language at issue, that being "knowingly caus[ing] physical harm to another"; (5) City Code

2303.14(A) as the statute number; and (6) a brief description of the conduct alleged—

Caldwell's "punching [S.S.] with a closed fist in the face at least three times." See Compl. All

of this information appears above the officer's signature, which is sworn. We determine this
No.18AP-814                                                                                 6


information provides Caldwell with "reasonable notice" of "the nature of the offense." State

v. Smith, 10th Dist. No. 16AP-21, 2017-Ohio-9283, ¶ 21.

       {¶ 17} Caldwell proceeds to make a technical argument that because the bottom of

the complaint identifies the "offense location" of the incident as the library's address at 1423

North High Street, Caldwell can only be charged with the assaults that transpired there. In

other words, he maintains the complaint did not provide him with proper notice of the

Newport Music Hall and Subway assaults being included because those addresses were not

listed on the complaint. However, as the state correctly points out, only the information

that appears above the signed oath is sworn. To that end, the complaint provides the

"jurisdictional location" of the crime as Ohio/Franklin/Columbus. In addition, the

Complaint states the events in focus took place in Franklin County / Columbus, Ohio. Both

of those statements appear above the officer's sworn signature. The library's address,

though, appears under the signature line and is therefore not sworn. Hence, because the

officer swore to the location of the essential facts as occurring in Franklin County / Ohio,

and the Newport Music Hall and Subway are both within that jurisdiction, the complaint

provides Caldwell with sufficient notice of the nature of the offense under Andrews and

Smith that the Newport Music Hall and Subway interactions were also at issue. See Tr.

Vol. II at 391. The trial court did not violate Crim.R. 3, and this ground for reversal is

deemed unpersuasive.

       B. Crim.R. 31(A)

       {¶ 18} In this part of the assignment, Caldwell reframes his above contention to

raise a Civ.R. 31 argument. In particular, he claims the trial court's admission of evidence

regarding the Newport Music Hall and Subway confrontations denied him of his right to a

unanimous verdict under Crim.R. 31(A), as some jurors may have found him guilty of the
No.18AP-814                                                                                 7


assault at Newport Music Hall or Subway instead of the library assault. He notes he objected

to the admission of that evidence at trial. The state responds that this is an alternative

means situation involving a single course of continuous conduct, which requires unanimity

as to guilt only. Caldwell does not reply. After due deliberation, we find the state's

contention to be more persuasive.

       {¶ 19} Crim.R. 31(A) provides simply "[t]he verdict shall be unanimous. It shall be

in writing, signed by all jurors concurring therein, and returned by the jury to the judge in

open court." But, a jury " 'need not always decide unanimously which of several possible

sets of underlying brute facts make up a particular element, say, which of several possible

means the defendant used to commit an element of the crime.' " State v. Marrero, 10th

Dist. No. 10AP-344, 2011-Ohio-1390, ¶ 97, quoting State v. Gardner, 118 Ohio St.3d 420,

2008-Ohio-2787, ¶ 38, quoting Richardson v. United States, 526 U.S. 813, 817 (1999). The

"critical inquiry, when determining whether a defendant was deprived of the Crim.R. 31(A)

right to juror unanimity 'is whether the case involves 'alternative means' or 'multiple acts.' "

Marrero at ¶ 97, quoting Gardner at ¶ 38.

       {¶ 20} Alternative means cases involve situations "where a single offense may be

committed in more than one way * * *." Gardner at ¶ 49. In those matters there must be

jury unanimity as to guilt for the single crime charged. Unanimity is not required, however,

as to the means by which the crime was committed so long as substantial evidence supports

each alternative means." Id. Multiple acts cases, on the other hand, include scenarios where

several acts are alleged and any one of them could constitute the crime charged. Id. at ¶ 50.

In these cases,

              the jury must be unanimous as to which act or incident
              constitutes the crime. To ensure jury unanimity in multiple acts
              cases, we require that either the State elect the particular
No.18AP-814                                                                                8


              criminal act upon which it will rely for conviction, or that the
              trial court instruct the jury that all of them must agree that the
              same underlying criminal act has been proved beyond a
              reasonable doubt.

Id. In sum, alternative means cases require unanimity only as to guilt but not as to means.

In contrast, multiple act matters require unanimity as to guilt and as to means.

       {¶ 21} The state urges us to find that Caldwell's actions toward S.S. at the library,

Newport Music Hall and Subway constitute a single continuous course of conduct so as to

qualify for the alternative means moniker. Under Gardner, if that label applies, juror

unanimity is required as to guilt, but not as to the means by which the crime was committed.

This finding, of course, would negate Caldwell's present contention in its entirety.

       {¶ 22} In support of its alternative means argument, the state first directs us to State

v. Marrero, 10th Dist. No. 10AP-344, 2011-Ohio-1390, ¶ 3. In that matter, we decided that

a defendant's hitting and restraining a victim in a car, and then trying to drag her back into

the car by her hair and neck after she escaped, constituted a single course of conduct that

could not cogently be further "divided into two or more 'distinct conceptual groupings.' "

State v. Boyd, 10th Dist. No. 14AP-961, 2015-Ohio-5116, ¶ 17, quoting State v. Johnson, 46

Ohio St.3d 96, 104 (1989) (overruled on other grounds by State v. Jenks, 61 Ohio St.3d 259,

282 (1991)), and citing Marrero at ¶ 96-101. Thus, we determined that the alternative

means requirement applied so that unanimity was required only as to guilt. Marrero at

¶ 96-101.

       {¶ 23} Additionally, the state relies on our holding in Boyd to buttress its contention

that alternative means analysis is proper here. Therein, we rely on Marrero in part to hold

a defendant's committing multiple criminal acts against a victim in more than a day

constituted "a single, drawn-out continuum of violence." Boyd at ¶ 15, 16. Thus, we
No.18AP-814                                                                                9


determined that the case involved a single, continuous course of conduct so only unanimity

as to guilt was required. Boyd at ¶ 15-17.

       {¶ 24} In this case, the complaint charges Caldwell with assaulting S.S. in violation

of Columbus City Code 2303.13(A), which provides "[n]o person shall knowingly cause or

attempt to cause physical harm to another."

       {¶ 25} At trial, the state introduced library security camera footage from the day in

focus. The video depicts Caldwell's library confrontations with S.S. and Parrish. Regarding

S.S., the video shows Caldwell shoving her to the ground. (State's Ex. B.) The audio of five

911 calls made during the confrontations was also admitted into evidence. Two were callers

from inside the library; the remaining three were from individuals located near the library,

Newport Music Hall, and Subway. Relevantly, Devon Henry, a resident of an apartment

across the street from the library, called 911 during the library altercation and stated that

an African-American man wearing jean shorts, black shoes, and no shirt was "hitting a

woman" at the library. (State's Ex. A.) Notably, that is the same attire Caldwell is wearing

in the security footage. Henry testified at trial. (Tr. Vol. II, 260-64.)

       {¶ 26} In addition, Joe Williams called 911 from the Newport Music Hall to report

an African-American man with no shirt and blue shorts "beating up on his wife." (State's

Ex. A.) He said the woman, who was wearing a tank top and jeans, was trying to get away

from the man, but he walked up and "started hitting on her." Id. His description of the

woman's clothing matches the attire S.S. is wearing in the video.

       {¶ 27} Rand Allison placed the third and final 911 call from Subway at S.S's request.

Id. He told the emergency operator an African-American male in blue jean shorts and no

shirt punched a white female in the face. Id. S.S. ran up to him "screaming someone call the

cops." Id. at :41. He described S.S.'s face as "bleeding" and "pretty messed up." Id. at 1:30.
No.18AP-814                                                                               10


         {¶ 28} All of those events took place within one hour and within one-half mile of the

library. (Tr. at 261, 269, 390, 407, 428; see also State's Ex. A.)

         {¶ 29} Under these facts, we find the state's reliance on Boyd and Marrero

persuasive. Here, the record establishes Caldwell's assault of S.S. began at the library,

continued at the Newport Music Hall, and concluded at the Subway. While the events in

Boyd occurred in more than one day, the events in this case lasted one hour. Caldwell

continued his assault against S.S. for a half-mile, with no sign of him trying to detour or

discontinue harming S.S. That clearly establishes Caldwell's actions constituted a single

course of conduct under the noted authorities. As such, pursuant to Marrero and Boyd, we

hold that alternative means analysis is proper, and that unanimity is required only as to

guilt.

         {¶ 30} Having determined that the alternative means characterization is proper, we

now must determine whether a "rational trier of fact could have found each means of

committing the crime proved beyond a reasonable doubt." Gardner, 2008-Ohio-2787,

¶ 49-50. Based on our recitation of the evidence at trial, this is a simple question. The video

and the three referenced 911 calls clearly establish Caldwell knowingly caused or attempted

to cause physical harm to S.S. by pushing and punching her.

         {¶ 31} In sum, we hold Caldwell engaged in a single, continuous course of conduct

such that application of the alternative means descriptor is proper. Under that analysis, we

hold the highlighted evidence is sufficient to support "all of the alternative means presented

to the jury by which [Caldwell] might have been found to have committed" assault. Boyd,

2015-Ohio-5116, ¶ 22; see also Gardner at ¶ 50. The record reflects the jury unanimously

found Caldwell guilty. (Tr. Vol. III at 588-590.) Accordingly, we find no violation of Crim.R.

31(A) present here and we overrule this portion of the assigned error.
No.18AP-814                                                                                11


       C. CRIM.R. 7

       {¶ 32} Caldwell's final contention under this assignment of error is that "by allowing

the State to introduce three separate acts of assault on S.S. at trial, the trial court

constructively amended the complaint by changing the essential factual elements."

(Caldwell's Brief. at 9.) Because we hold above that Caldwell's conduct equates to a single

course of action, we necessarily overrule this ground for appeal as well.

       {¶ 33} Assuming for purposes of argument that this contention remains viable after

our decision supra, we would still reach the same result. This is so because although

Caldwell cites to two cases, he fails to elaborate how those cases demand the result he seeks.

It is "not appropriate for this court to construct the legal arguments in support of an

appellant's appeal. If an argument exists that can support this assignment of error, it is not

this court's duty to root it out." (Internal quotations and citation omitted.) Roberts v.

Hutton, 152 Ohio App.3d 412, 2003-Ohio-1650, ¶ 18 (10th Dist.). Consequently, we

determine Caldwell fails to sustain his burden of affirmatively demonstrating error as to

this section of his appeal. See State v. England, 10th Dist. No. 05AP-793, 2006-Ohio-5087,

¶ 16. This ground for reversal is therefore also insufficient to grant the requested relief. In

sum, we overrule Caldwell's first assignment of error in its entirety.

IV. THE TRIAL COURT DID NOT DENY CALDWELL'S DUE PROCESS RIGHT
    TO A FAIR TRIAL

       {¶ 34} Caldwell supports his second assignment of error by asserting the trial court's

admission of "other acts" evidence equates to cumulative error establishing that his due

process rights were violated. The state retorts the evidence in question was properly

admitted, and even if its admission was improper, it was harmless error. We concur with

the state.
No.18AP-814                                                                              12


       {¶ 35} As noted, Caldwell takes issue with the trial court's admission of "other acts

evidence." (Caldwell's Brief. at 11-14.) Evid.R. 404(B) provides:

               Other crimes, wrongs or acts. Evidence of other crimes,
               wrongs, or acts is not admissible to prove the character of a
               person in order to show action in conformity therewith. It may,
               however, be admissible for other purposes, such as proof of
               motive, opportunity, intent, preparation, plan, knowledge,
               identity, or absence of mistake or accident.

"The admission of other acts-evidence under Evid.R. 404(B) 'lies within the broad

discretion of the trial court, and a reviewing court should not disturb evidentiary decisions

in the absence of an abuse of discretion that has created material prejudice.' " State v.

Peterson, 10th Dist. No. 12AP-646, 2013-Ohio-1807, ¶ 21. An abuse of discretion means

more than an error of law or judgment. Rather, an abuse of discretion implies that the

court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

       {¶ 36} Caldwell utilizes the rule to argue the trial court improperly admitted two

types of propensity evidence to his material prejudice. Caldwell first claims Wilkens'

testimony depicting Caldwell's attempt to hit him was offered only to establish Caldwell's

propensity to assault S.S. because Caldwell was not charged for that act. (Tr. Vol. II at 270-

74.) Second, Caldwell asserts the admission of testimony regarding a previous altercation

between him and S.S. was only to show "Caldwell to be a violent man." (Caldwell's Brief. at

13; see also Tr. Vol. II at 441-43.)

       {¶ 37} "[A]n improper evidentiary admission under Evid.R. 404(B) may be deemed

harmless error on review when, after the tainted evidence is removed, the remaining

evidence is overwhelming." State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 32.

Pursuant to that guidance, we determine that the admission of the two noted categories of
No.18AP-814                                                                              13


evidence was harmless due to the overwhelming remaining evidence of Caldwell's guilt in

the form of the video and Henry's testimony, each of which confirm Caldwell's assault on

S.S. The trial court did not abuse its discretion in allowing the admission of such evidence.

Hence, this ground for reversal does not equate to material prejudice and is therefore not

persuasive.

       {¶ 38} Caldwell also argues the admission of Williams' and Allison's 9-1-1 calls

violated Evid.R. 404 as "other acts" evidence. (Caldwell's Brief. at 12-13.) We hold above,

however, that those calls depict Caldwell's continuous course of conduct. As such, they

cannot equate to "other acts." And, relatedly, we dismiss Caldwell's final contention under

this assignment that the trial court erred by allowing the state to discuss those calls during

closing. Again, those calls are part of Caldwell's continuous conduct. Additionally, closing

arguments are not evidence.

       {¶ 39} Caldwell's cumulative error argument likewise fails. (Caldwell's Brief. at 10.)

"Pursuant to the doctrine of cumulative error, a judgment may be reversed where the

cumulative effect of errors deprives a defendant of his constitutional rights, even though

the errors individually do not rise to the level of prejudicial error." State v. Ibrahim, 10th

Dist. No. 14AP-355, 2014-Ohio-5307, ¶ 36. Because not one of Caldwell's grounds in

support of his due process assignment constitutes error, the cumulative effect doctrine is

inapplicable here. See State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶

124-25 (holding multiple errors are required to establish cumulative error).

       {¶ 40} For those reasons, we overrule the second assignment of error.

V. THE STATE'S CLOSING ARGUMENT DID NOT PREJUDICE CALDWELL

       {¶ 41} The third and final assignment of error charges the state engaged in

misconduct in its closing by describing Caldwell's counsel's arguments as "poppycock" and
No.18AP-814                                                                              14


"legally inaccurate." (Tr. Vol. III at 561-69.) Caldwell also takes issue with the prosecutor

calling him "an abuser" who "hunt[s] the victim." Id. at 567-49. The state counters that the

comments did not substantially prejudice the defendant. We find the state's arguments

carry more weight and we therefore overrule Caldwell's third assignment of error.

       {¶ 42} We begin by noting that "[a] prosecutor is afforded a certain degree of latitude

in his concluding remarks, may draw reasonable inferences from evidence at trial, and may

comment on those inferences during closing argument." State v. Hairston, 10th Dist.

Franklin No. 01AP-252, 2001 Ohio App. LEXIS 4399 * 12 (Sept. 28, 2001); appeal not

allowed, see also State v. Thomas, 10th Dist. No. 02AP-778, 2003-Ohio-2199. With that in

mind, "[t]he test regarding prosecutorial misconduct in closing arguments is whether the

remarks were improper and, if so, whether they prejudicially affected substantial rights of

the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984). Hence, "[a] defendant is entitled

to a new trial only when a prosecutor makes improper remarks and those remarks

substantially prejudice the defendant." State v. Hunt, 10th Dist. No. 12AP-1037, 2013-

Ohio-5326, ¶ 18, citing Smith, 14 Ohio St.3d at 14.

       {¶ 43} We consider the following factors when examining whether the alleged

misconduct resulted in substantial prejudice to Caldwell: "(1) the nature of the remarks,

(2) whether an objection was made by counsel, (3) whether corrective instructions were

given by the court, and (4) the strength of the evidence against the defendant." State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist. 1995), discretionary appeal not allowed, 73

Ohio St. 3rd 1425, (1995). "[a] reversal for prosecutorial misconduct is not warranted unless

it is clear beyond a reasonable doubt that the outcome of the trial would have been different

but for the misconduct." (Citations omitted.) State v. Tyler, 10th Dist. No. 05AP-989, 2006-

Ohio-6896, ¶ 20.
No.18AP-814                                                                                15


         {¶ 44} For purposes of argument, we shall assume the comments were improper.

Caldwell's counsel did object, and the trial court instructed the jury to disregard.

Furthermore, the video, the 911 calls, and the testimonial evidence overwhelmingly

established Caldwell's identity and guilt. Thus, even with the inappropriate comments, the

jury still saw Caldwell attack S.S. with their own eyes via the video. The jury still heard five

separate people call 911 about the attacks. Accordingly, because we find Caldwell suffered

no prejudice as a result of the prosecutor's assumed improper conduct, and because it is

clear beyond a reasonable doubt that the trial's outcome would not have been different but

for the misconduct, we overrule this assignment of error under Smith, Hunt, Braxton, and

Tyler.

VI. CONCLUSION

         {¶ 45} For the reasons above, we overrule Caldwell's three assignments of error. The

judgment of the Franklin County Municipal Court is affirmed.

                                                                         Judgment affirmed.
                              KLATT and SADLER, JJ., concur.
