Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas Trial No.
T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for
Farrish Law Firm and Michaela M. Stagnaro, for
Defendant-appellant Brandon Carter has appealed from the
trial court's entry convicting him of robbery and
sentencing him to seven years' imprisonment.
In five assignments of error, Carter argues that the
prosecutor made improper remarks during closing arguments;
that he received ineffective assistance from his trial
counsel; that his conviction was not supported by sufficient
evidence and was against the manifest weight of the evidence;
that the trial court erred in failing to grant his Crim.R. 29
motion for an acquittal; and that the trial court imposed an
Finding no merit to Carter's arguments, we affirm the
judgment of the trial court. But we have found a clerical
error in its judgment entry, so we remand this cause with
instructions for the trial court to correct that clerical
On January 23, 2015, Alexander Ford and Johnell Amison were
robbed at gunpoint during a potential drug sale. For his role
in these crimes, Carter was charged with two counts of
aggravated robbery in violation of R.C. 2911.01(A)(1), two
counts of robbery in violation of R.C. 2911.02(A)(2), two
counts of felonious assault in violation of R.C.
2903.11(A)(2), one count of felonious assault in violation of
R.C. 2903.11(A)(1), and one count of improperly handling a
firearm in a motor vehicle in violation of R.C. 2923.16(A).
The case proceeded to a jury trial. At trial, Ford testified
that he and Carter had been longtime friends, and that on
January 23, 2015, Carter called him asking to borrow money
for car repairs. Ford explained that he already owed Carter
approximately $80, and that he told Carter that he would
repay the money he owed, as well as loan Carter additional
money. Ford further told Carter that he had a friend who was
selling marijuana, and Carter stated that he knew someone who
might be interested in purchasing it. The two arranged to
meet later in the day in the parking lot of a Frisch's
Ford testified that the meeting took place in his car. Ford
and Amison sat in the front of the car. Carter entered and
sat in the back seat of Ford's car, and shortly
thereafter he was joined by an unknown male. Carter asked
Ford for the money that he owed him and inquired about the
marijuana that was for sale. Both Ford and Amison produced
marijuana that they had on their persons. When Ford turned to
the back seat to discuss a potential deal, he saw that both
Carter and the unknown man had produced guns and were
pointing them at him and Amison. Carter and Amison were told
to "give us what you got."
One of the armed men fired a warning shot into the front
seat. Ford panicked and gave his assailants everything that
he had on his person. The men then instructed Ford to put the
car in reverse. While Ford complied, Amison jumped out of the
vehicle. Ford then also jumped out as two additional shots
were fired from the back seat. As Ford grabbed onto the trunk
of the car, he saw both Carter and the unknown man climb into
the front of the vehicle. One of the men fired a shot at him
through the back windshield, and eventually Ford let go of
the car as the pair drove away. Ford suffered injuries and
was transported to a hospital.
Cincinnati Police Officer Robert Perry testified that he
responded to the scene of these crimes and later spoke with
Ford in the hospital. From his discussion with Ford, Officer
Perry developed Carter as a suspect and put together a
photographic lineup. After viewing the lineup, Ford
identified Carter as one of his assailants.
Officer Perry further testified that he issued a warrant for
Carter's arrest, and that Carter was arrested on January
26, 2015. During an interview with Officer Perry, Carter
denied participating in the crimes committed against Ford and
Amison, and stated that he had been picking up his car from a
local car dealership when the crimes took place.
After deliberating for several days, the jury returned a
verdict finding Carter guilty of robbery in count two. The
jury was unable to reach a verdict on the remaining seven
In his first assignment of error, Carter argues that the
prosecutor made improper remarks to the jury during closing
argument that prejudiced his right to a fair trial.
Prosecutorial misconduct will only serve as grounds for error
if it deprived the defendant of a fair trial. State v.
Smith, 130 Ohio App.3d 360, 366, 720 N.E.2d 149 (1st
Dist.1998). Accordingly, the remarks must have been improper
and have prejudicially affected the defendant's
substantial rights. State v. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, ¶ 42, quoting
State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677,
984 N.E.2d 948, ¶ 200. Prosecutors are normally entitled
to a certain degree of latitude during closing argument.
State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883
(1984). Statements made during closing argument must not be
evaluated in isolation, but in light of the entire closing
argument. State v. Kelly, 1st Dist.
Hamilton No. C-010639, 2002-Ohio-6246, ¶ 22, citing
State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d
203 (1993). A defendant's failure to object to an
allegedly improper statement by the prosecutor forfeits all
but plain error. Kelly at ¶ 22. To establish
plain error, a defendant must demonstrate that the outcome of
the proceedings would have been different but for the alleged
misconduct. Id. Carter did not object to any of the
statements that he now challenges, so we examine them under
the plain-error standard.
Carter first argues that the prosecutor improperly stated
during closing argument, in reference to Ford's
testimony, that "[i]f he's credible, he's
credible. If you believe him, you should believe his whole
story." This comment was not objected to. While on its
face this comment could be viewed as an erroneous statement
of law, when viewed in context it was not improper. Defense
counsel had argued in closing argument that portions of
Ford's testimony had been accurate, but not those
portions of testimony in which Ford identified Carter as a
participant in the crimes committed against him. The above
comment was made by the prosecutor in response to defense
counsel's argument. A fair interpretation is that the
prosecutor was urging the jury to believe all of Ford's
testimony. The prosecutor did not tell the jury that it must
believe Ford's whole story, only that it should. Further,
to the extent that this comment could be deemed improper, the
trial court gave the jury an instruction which cured any
misstatement of the law, stating that "[y]ou may ...