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State v. Carter

Court of Appeals of Ohio, First District, Hamilton

March 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
BRANDON CARTER, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1500483.

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.


          Myers, Judge.

         {¶1} Defendant-appellant Brandon Carter has appealed from the trial court's entry convicting him of robbery and sentencing him to seven years' imprisonment.

         {¶2} 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 improper sentence.

         {¶3} 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 error.

         Background and Procedure

         {¶4} 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).

         {¶5} 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 restaurant.

         {¶6} 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."

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 charges.

         Prosecutorial Misconduct

         {¶11} 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.

         {¶12} 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.

         {¶13} 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 ...

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