[Cite as State v. White, 2016-Ohio-4829.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       27683

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DIMITRY T. WHITE                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2014 07 2199 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: July 6, 2016



        HENSAL, Judge.

        {¶1}     Dimitry White appeals his convictions in the Summit County Court of Common

Pleas. For the following reasons, this Court affirms in part, and reverses in part.

                                                 I.

        {¶2}     The victim, Anthony Thomas, was shot and killed in the back yard of a known

drug house located at 1007 Cole Avenue in Akron (“1007 Cole”) the evening of July 11, 2014.

A neighbor who heard the gunshots and witnessed a suspicious individual walking quickly down

the street called the police. Police canvassed the area and obtained statements from several

individuals inside 1007 Cole, as well as neighbors who saw the suspicious individual. As a

result of their investigation, the police obtained an arrest warrant for Dimitry White. Officers

located Mr. White on July 13, 2014, at his sister’s house. Mr. White was arrested and charged

with aggravated murder with a firearm specification, murder with a firearm specification, and

having a weapon while under disability.
                                                 2


       {¶3}    The case proceeded to a jury trial. The State presented testimony from several

witnesses who were inside 1007 Cole at the time of the shooting. These witnesses, most of whom

were known by law enforcement to habitually use drugs and engage in prostitution, testified that

they knew the victim, and that he was a drug dealer who often stayed in an upstairs bedroom at

1007 Cole. They also testified that the victim was not well liked, and that he wanted to be the

“house.” The “house” is the person in charge of 1007 Cole that obtains drugs for people and, in

return, receives either a portion of the drugs or a fee. They relayed that at the time of the murder,

Marlin Smith – who did not testify – was considered the “house.”

       {¶4}    Witnesses testified that the victim and Mr. Smith had previously argued over who

should be in charge of 1007 Cole, and that the victim had locked Mr. Smith and Mr. White out of

the house a few days prior to the murder. According to one witness who was with the men while

they were locked out, Mr. White brandished a silver gun and waved it in front of a window,

telling the victim that he had to come out eventually, and that he was going to shoot him. The

victim managed to exit 1007 Cole through a second-floor window without incident.

       {¶5}    Regarding the day of the murder, the witnesses from inside 1007 Cole testified

that an intruder had entered the house in what appeared to be “a hit.” The intruder went through

each room, telling one witness to move because she was blocking a doorway. After apparently

not finding who he was looking for, the intruder left. The witnesses heard gunshots shortly

thereafter, although their testimony differed as to how much time had passed. Mr. White admits

in his merit brief that the witnesses gave “similar but not identical physical descriptions of the

intruder.” That description was a tall, thin male wearing a red hooded sweatshirt and red

sweatpants with pantyhose (or some other mask) covering his face, holding a silver gun.
                                                 3


        {¶6}    The State also presented testimony from several neighbors.          One neighbor

testified that she saw a tall person in a red jumpsuit jogging down the street after she heard the

gunshots, but that she could not see the person’s face. That neighbor’s daughter, who called the

police, testified that she saw a tall person wearing a black and red jumpsuit walking quickly

down the street. She admitted, however, that she initially told the 911 dispatcher that the

individual was wearing an all red jumpsuit, and that she saw him fidgeting with something in his

hand. Another neighbor testified that she heard the gunshots and saw a thin person wearing a red

hooded sweatshirt and red sweatpants walking quickly down the street. She testified that she

could see his hands, and that he was a light-skinned black male. She also testified that she saw

something silver in his hand, which she thought was a gun.

        {¶7}    The parties also stipulated to the playing of a video statement from another

neighbor who was unavailable to testify at trial.       That neighbor indicated that he saw an

individual wearing red walking down the street immediately after he heard the gunshots. He

described that individual as being less than six feet tall, which, Mr. White argues, does not match

his height at 6’ 4”.

        {¶8}    Although the witnesses inside 1007 Cole initially denied being able to identify the

intruder, several witnesses later identified Mr. White as the individual that had entered the home

wearing red clothing. One witness testified that she initially lied to the police because Mr.

White’s family threatened her. Another witness testified that she initially lied because she was

scared and did not want to believe that Mr. White killed the victim. These witnesses later

identified Mr. White as the intruder based upon his physique, voice, and/or facial features that

could be discerned despite the fact that his face was covered. Only one witness from inside 1007
                                                  4


Cole testified that he could not identify the intruder, but he further testified that, in his “heart of

hearts[,]” he believed the intruder was Mr. White.

       {¶9}    The State also presented the testimony of Bobby Sue McGraw, who was not in

1007 Cole at the time of the intrusion or murder. Ms. McGraw testified that she had been to

1007 Cole earlier in the day and heard Mr. White and the victim arguing. She also testified that

Mr. White had shown her a silver gun a few weeks prior to the murder, which he apparently

bought for protection after being robbed. She further testified that Mr. White called her the night

of the murder and said, “I can’t believe I did this” multiple times.

       {¶10} The State also presented testimony from a jailhouse informant who testified that

Mr. White told him that he killed the victim, and was able to describe the manner in which the

victim was shot. He testified that Mr. White also told him that he and the victim had been in an

argument earlier that day, that he went to his sister’s house and put on a burgundy jumpsuit over

his clothes, and that he returned to 1007 Cole and waited in the back yard for the victim to arrive.

Notably, one of the responding crime scene unit detectives testified that he observed bushes in

the back yard that appeared to be disturbed, which led him to believe that the shooter could have

been sitting or lying down, waiting for the victim to arrive.

       {¶11} After the State rested, the defense moved for acquittal under Criminal Rule 29(A),

which the trial court denied. The defense then presented testimony from several witnesses,

including Mr. White’s niece who provided an alibi, and a woman who claimed that one of the

State’s witnesses told her that she lied on the stand. Regarding his alibi, Mr. White’s niece

testified that Mr. White was with her and her mom (Mr. White’s sister) the evening of the

murder, and that she never heard him leave the house. According to her, Mr. White was in the

house from Friday evening (the night of the murder) until Sunday, when he was arrested. On
                                                5


cross-examination, she admitted that she initially told an officer that Mr. White arrived at their

home on Saturday, not Friday, and that she was getting high the night of the murder.

         {¶12} With respect to the alleged perjury, the defense’s witness testified that Ms.

McGraw told her that she got high before her testimony, and that she lied and made herself cry

on the stand. She also testified that she saw detectives give Ms. McGraw money, which, she

admitted, was probably for food. She further testified, however, that the detectives dropped Ms.

McGraw off at a drug dealer’s house, and that they knew she was going to use the money to buy

drugs.

         {¶13} After hearing the testimony of over 20 witnesses, the jury returned a verdict of

guilty on all charges.   Because the murder conviction merged with the aggravated murder

conviction, the State elected to proceed with sentencing on the aggravated murder charge. The

trial court sentenced Mr. White to 25 years to life for aggravated murder, 3 years for the firearm

specification, and two years for having a weapon while under disability. The trial court ordered

the sentences to run consecutively for a total prison sentence of 30 years to life. Mr. White

appeals his convictions, raising four assignments of error for our review.             For ease of

consideration, we will address his assignments of error out of order.

                                                II.

                                 ASSIGNMENT OF ERROR II

         DIMITRY WHITE’S CONVICTIONS FOR AGGRAVATED MURDER,
         MURDER, GUN SPECIFICATIONS, AND HAVING WEAPON WHILE
         UNDER DISABILITY WERE NOT SUPPORTED BY SUFFICIENT
         EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
         14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
         SECTIONS 1, 10, & 16 OF THE OHIO CONSTITUTION.

         {¶14} In his second assignment of error, Mr. White argues that his convictions are not

supported by sufficient evidence. Whether a conviction is supported by sufficient evidence is a
                                                6


question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

In making this determination, we must view the evidence in the light most favorable to the

prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶15} The jury found Mr. White guilty of aggravated murder under Revised Code

Section 2903.01(A) with an accompanying firearm specification under Section 2941.145, murder

under Section 2903.02(A) with an accompanying firearm specification under Section 2941.145,

and having a weapon while under disability pursuant to Section 2923.13(A)(2). Regarding

aggravated murder, Section 2903.01(A) provides that “[n]o person shall purposely, and with

prior calculation and design, cause the death of another * * *.” The murder statute, on the other

hand, does not require prior calculation and design.        See Section 2903.02(A).      Section

2929.14(B)(1)(a)(ii) requires a mandatory three-year prison term if the defendant is found to

have “used [a firearm] to facilitate the offense[.]”       R.C. 2941.145(A).     Lastly, Section

2923.13(A)(2) provides that “no person shall knowingly * * * use any firearm * * * if * * *[t]he

person is under indictment for or has been convicted of any felony offense of violence[.]” There

is no dispute that Mr. White had previously been convicted of a felony offense of violence for

purposes of Section 2923.13(A)(2).

       {¶16} Mr. White makes several arguments in support of his assignment of error. In

summary, he argues that no eye witnesses identified him as the shooter, that no physical
                                                 7


evidence tied him to the crime, that he did not match the physical description given to the police,

and that the State’s witnesses were so unbelievable and “rife with undue influence” that no

reasonable jury could have relied on them.

          {¶17} The State, however, presented testimony from several witnesses that identified

Mr. White as the intruder at 1007 Cole, and that described him as wearing red clothing with his

hood up, and a mask over his face. The neighbors, none of whom were inside 1007 Cole when

the intruder entered the home, described the person they saw fleeing down the street in similar

attire.    Although there were inconsistencies among the neighbors as to the height of the

individual, three neighbors indicated that the person wearing red was tall. According to the lead

detective on the case, Mr. White is approximately 6’4” in height, and everything pointed to the

intruder and the individual seen fleeing down the street as being the same person: Mr. White.

          {¶18} Mr. White concedes that “under normal circumstances,” the numerous witnesses

identifying him as the intruder would survive a sufficiency challenge. But in this case, he

argues, their testimony was so unbelievable and “rife with undue influence” that no reasonable

jury would have relied on them. More specifically, he challenges their testimony as being

influenced by the prosecutors through money and/or consideration for their own criminal

charges.     Mr. White’s argument in this regard, however, challenges the credibility of the

witnesses and, therefore, goes to the weight of the evidence, not sufficiency. State v. Violett, 9th

Dist. Medina No. 11CA0106-M, 2012-Ohio-2685, ¶ 7.

          {¶19} Viewing the evidence in a light most favorable to the prosecution, the jury could

have reasonably found the essential elements of the charged crimes proven beyond a reasonable

doubt. Mr. White’s second assignment of error is overruled.
                                                 8


                                 ASSIGNMENT OF ERROR III

       DIMITRY WHITE’S CONVICTIONS FOR AGGRAVATED MURDER,
       MURDER, GUN SPECIFICATIONS, AND HAVING WEAPON WHILE
       UNDER DISABILITY WERE AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
       14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
       SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

       {¶20} Mr. White also argues that his convictions are against the manifest weight of the

evidence. If a defendant asserts that a conviction is against the manifest weight of the evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d, at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶21} Mr. White argues that his convictions are against the manifest weight of the

evidence for several reasons, including: (1) no physical evidence tied him to the home intrusion

or the murder; (2) the description given to police matched Marlin Smith (the “house”) and it was

more reasonable to conclude that the witnesses inside 1007 Cole were covering for Mr. Smith

because he sustained their drug addictions; and (3) the witnesses inside 1007 Cole initially

denied being able to identify the intruder and were unduly influenced by the prosecutor.

       {¶22} Regarding the lack of physical evidence, there is no dispute that the State based

its case on circumstantial evidence. But as the Ohio Supreme Court has held, “circumstantial

evidence alone may be sufficient to support a conviction for murder.” State v. Nicely, 39 Ohio
                                                9


St.3d 147, paragraph one of the syllabus (1988). As it relates to Marlin Smith, the record reflects

that Mr. Smith was wearing red sweatpants the night of the murder, and that he matched the

height description given in the 911 “BOLO” (i.e., “[b]e on the lookout”) report.           Several

witnesses testified, however, that Mr. Smith was inside 1007 Cole when the intruder entered the

house and when they heard gunshots. Further, a gunshot residue test performed on Mr. Smith

produced negative results.

       {¶23} Lastly, regarding the credibility of the witnesses, “[c]redibility determinations are

primarily within the province of the trier of fact.” State v. Just, 9th Dist. Wayne No. 12CA0002,

2012-Ohio-4094, ¶ 42. That is because “the [jury] is best able to view witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.” (Alteration sic.) State v. Cook, 9th Dist. Summit No.

21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659 (8th

Dist.1993). In doing so, “the jury is free to believe all, part, or none of the testimony of each

witness.” Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35.

       {¶24} As it relates to the prosecutor’s alleged influence over the witnesses, the

prosecutor asked several witnesses on direct examination whether they received any sort of deal

to testify against Mr. White. They indicated they had not. On cross-examination, the jailhouse

informant did testify that he expected “some consideration” for his testimony, but also stated that

the prosecutor made it clear to him that a deal “wasn’t even on the table[.]” Further, one of the

officers testified that he did not promise anything to any of the witnesses in return for their

statements.

       {¶25} Here, the jury reviewed all of the evidence and assessed the credibility of the

witnesses, many of whom admitted to engaging in prostitution and habitual illegal drug use,
                                                10


resulting in criminal convictions. Having reviewed the record, we cannot say that the jury

clearly lost its way when it accepted the State’s version of the events. See Thompkins, 78 Ohio

St.3d, at 387. Mr. White’s convictions, therefore, are not against the manifest weight of the

evidence. Mr. White’s third assignment of error is overruled.

                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES
       UPON DIMITRY WHITE, IN VIOLATION OF THE DUE PROCESS CLAUSE
       OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND
       ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION.

       {¶26} In his fourth assignment of error, Mr. White argues that the trial court erred by

imposing consecutive sentences. More specifically, he argues that the trial court’s findings at the

sentencing hearing conflict with those contained in the court’s journal entry.

       {¶27} Revised Code Section 2929.14(C)(4) governs consecutive sentences. As this

Court has stated,

       [B]efore a trial court may impose consecutive sentences, it must make three
       findings: (1) that consecutive sentences are necessary to protect the public from
       future crime or to punish the offender; (2) that consecutive sentences are not
       disproportionate to the seriousness of the offender’s conduct and to the danger the
       offender poses to the public; and (3) that one of the three particular findings set
       forth in R.C. 2929.14(C)(4)(a)-(c) applies.

State v. Henderson, 9th Dist. Summit No. 27078, 2014-Ohio-5782, ¶ 52.             Subsections (a)

through (c) provide as follows:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed pursuant
       to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-
       release 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 for any of the
       offenses committed as part of any of the courses of conduct adequately reflects
       the seriousness of the offender’s conduct.
                                                 11



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

       {¶28} While “a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, * *

* it has no obligation to state reasons to support its findings. Nor is it required to give a

talismanic incantation of the words of the statute, provided that the necessary findings can be

found in the record and are incorporated into the sentencing entry.” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, ¶ 37.

       {¶29} Mr. White challenges the trial court’s findings as they relate to subsections (a)

through (c) only. In this regard, he argues that the trial court relied upon subsection (b) (i.e., two

of the offenses were committed as part of one or more courses of conduct) during the sentencing

hearing, but that the journal entry relies upon subsection (c) (i.e., Mr. White’s prior criminal

history demonstrated that consecutive sentences were necessary to protect the public from future

crimes). The State concedes that the trial court relied upon subsection (c) in its journal entry, but

argues that the trial court was also aware of Mr. White’s criminal record at the sentencing

hearing.

       {¶30} Our review of the record, however, indicates that the trial court specifically relied

upon subsection (b), that is, that two of the offenses were committed as part of one or more

courses of conduct, at the sentencing hearing. “Because the court’s finding at the sentencing

hearing is in conflict with its judgment entry, we reverse and remand for resentencing.”

Henderson, 2014-Ohio-5782, at ¶ 55. Accordingly, Mr. White’s fourth assignment of error is

sustained.
                                                12


                                  ASSIGNMENT OF ERROR I

       THE PROSECUTOR’S REMARKS IN CLOSING ARGUMENT WERE
       PROSECUTORIAL MISCONDUCT THAT DEPRIVED DIMITRY WHITE OF
       HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF HIS 5TH, 6TH, AND
       14TH AMENDMENTS RIGHTS UNDER THE U.S. CONSTITUTION AND
       ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

       {¶31} In his first assignment of error, Mr. White argues that the prosecutor’s remarks

during closing argument deprived him of a fair trial. Specifically, Mr. White argues that the

prosecutor engaged in prosecutorial misconduct by stating that the detectives gave Ms. McGraw

money for food, not to lie on the stand, evidence of which was not admitted at trial. He also

argues that his trial counsel failed to request a limiting jury instruction on this issue. Mr. White

further argues that the prosecutor engaged in misconduct by stating: “I don’t like that” in

reference to defense counsel’s ability to address certain issues during closing argument.

       {¶32} “The 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. Geiger, 9th Dist. Medina No. 12CA0006-M, 2012-Ohio-4002, ¶ 8, quoting

State v. Smith, 14 Ohio St.3d 13, 14 (1984). “To establish prejudice, an accused must show that

there is a reasonable probability that, but for the prosecutor’s improper remarks, the result of the

proceeding would have been different.” State v. Hodge, 9th Dist. Lorain No. 98CA007056, 2000

WL 1533917, *7 (Oct. 18, 2000). We must “view the [prosecutor’s] closing argument in its

entirety to determine whether the allegedly improper remarks were prejudicial.” State v. Treesh,

90 Ohio St.3d 460, 466 (2001).

       {¶33} With respect to Ms. McGraw, the prosecutor stated: “take [Ms. McGraw] for

whatever you want, but I’ll tell you, nobody paid [her] to come in and say anything.” The

prosecutor further indicated that his office provided Ms. McGraw with a hotel room for safety,
                                                  13


and, on rebuttal, stated that the detectives gave her money for food. The State argues that Mr.

White failed to object to these statements at trial and, therefore, has forfeited all but plain error.

In response, Mr. White argues that his trial counsel did object to the prosecutor’s statements, but

he concedes that his trial counsel failed to request a limiting jury instruction on this issue. More

specifically, he argues that a specific jury instruction was required to reinforce to the jury that the

personal assurances of counsel are improper and must be disregarded, and that it was plain error

to not give such a curative instruction. Mr. White acknowledges that the trial court did instruct

the jury that closing arguments are not evidence, but he argues that this instruction alone “cannot

be reasonably believed to cure the knowing interjection of personal assurances given by the

prosecutor.”

       {¶34} Mr. White relies upon State v. Smith, 14 Ohio St.3d 13 (1984), for the proposition

that the trial court’s single instruction to the jury that closing arguments are not evidence was

insufficient to correct any error under these circumstances. In Smith, the assistant prosecutor

referred to the defense’s evidence as “‘lies,’ ‘garbage,’ ‘garbage lies,’ ‘[a] smoke screen,’ and ‘a

well conceived and well rehearsed lie.’” (Alteration sic.) Id. at 14. The Court noted that there

was no evidence to substantiate the assistant prosecutor’s allegations, and that “[s]uch conduct is

well beyond the normal latitude allowed in closing arguments and is clearly improper.” Id. The

Court, therefore, held that “in cases of such flagrant misconduct on the part of the prosecution as

was present here, the general instruction that arguments of counsel are not to be considered as

evidence was insufficient to correct the error.” Id. at 15.

       {¶35} Based upon our review of the record, we do not find that the prosecutor’s

statements during closing argument rose to the level of “flagrant misconduct” as contemplated

under Smith such that the trial court’s instruction to the jury did not correct any error. Compare
                                                 14


State v. Harris, 9th Dist. Lorain No. 11CA009991, 2012-Ohio-2973, ¶ 13-16 (holding that the

prosecutor committed “flagrant misconduct” when she referred to the defendant’s post-arrest,

post-Miranda silence during closing argument, repeated the defendant’s lone statement to the

police and queried as to whether an innocent person would have said more, repeatedly opined

that the victim was credible, and commented on the quality of the defense, stating that it was

“bull” and “smoke and mirrors[.]”). Further, we note that “[i]t is presumed that the jury will

follow the court’s instructions.” State v. Manor, 9th Dist. Summit No. 14376, 1990 WL 73651,

*1 (May 30, 1990).

       {¶36} We now turn to the prosecutor’s statement of “I don’t like that” during closing

argument. Mr. White concedes that defense counsel failed to object to this statement at trial.

We, therefore, apply a plain error standard of review. State v. Reed, 9th Dist. Wayne No.

12CA0051, 2013-Ohio-3970, ¶ 65. The doctrine of plain error requires that there must be: (1) a

deviation from a legal rule; (2) that is obvious, and; (3) that affects the appellant’s substantial

rights. State v. Hardges, 9th Dist. Summit No. 24175, 2008–Ohio–5567, ¶ 9. An error affects

the appellant’s substantial rights if it affected the outcome of the trial. State v. Barnes, 94 Ohio

St.3d 21, 27 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶37} The parties disagree about what the prosecutor meant when he said “I don’t like

that” during his closing argument. The statement occurred during the prosecutor’s discussion

regarding the State’s witness who testified that, in his “heart of hearts[,]” he believed, but did not

know, that Mr. White was the intruder at 1007 Cole. After discussing his testimony, the

prosecutor stated that defense counsel “d[oesn’t] have to give a closing argument, but if he does,
                                                15


I’m sure that will probably be addressed. I don’t like that.” Mr. White argues that the State was

referring to his counsel’s ability to address the State’s witness’s testimony. The State, on the

other hand, argues that the prosecutor was simply summarizing what he believed defense counsel

was thinking in regards to its witness’s testimony.

       {¶38} Even assuming that Mr. White’s interpretation of the prosecutor’s comment is

correct, we cannot say that the result of the trial would have been different but for his comment.

Mr. White, therefore, cannot establish plain error. In light of the foregoing, Mr. White’s first

assignment of error is overruled.

                                                III.

       {¶39} Mr. White’s first, second, and third assignments of error are overruled. Mr.

White’s fourth assignment of error is sustained. The judgment of the Summit County Court of

Common Pleas is affirmed in part, reversed in part, and remanded for resentencing.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                16


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
