State v. Underwood , 2011 Ohio 5418 ( 2011 )


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  • [Cite as State v. Underwood, 
    2011-Ohio-5418
    .]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    STATE OF OHIO                                      :
    :         Appellate Case No. 24186
    Plaintiff-Appellee                         :
    :         Trial Court Case No. 10-CR-281
    v.                                                 :
    :
    MICHAEL J. UNDERWOOD                               :         (Criminal Appeal from
    :         (Common Pleas Court)
    Defendant-Appellant                        :
    :
    ...........
    OPINION
    Rendered on the 21st day of October, 2011.
    .........
    MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384,
    Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
    Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
    Attorneys for Plaintiff-Appellee
    DANIEL R. ALLNUTT, Atty. Reg. #0085452, Post Office Box 234, Alpha, Ohio
    45301
    Attorney for Defendant-Appellant
    .........
    FAIN, J.
    {¶ 1} This      matter     is   before         the   Court   on   the   direct   appeal   of
    Defendant-appellant Michael Underwood from his conviction and sentence for
    Aggravated Robbery.            Underwood argues that his conviction is against the
    manifest weight of the evidence and that he was denied the effective assistance of
    2
    trial counsel.   He maintains that the trial court erred in refusing to allow police
    dispatch records into evidence and that the trial court erred in overruling his motion
    for a judgment of acquittal because the jury verdicts were inconsistent.
    Underwood also claims that the State committed prosecutorial misconduct during
    closing arguments.
    {¶ 2} We conclude that Underwood’s conviction is not against the manifest
    weight of the evidence and that he was not denied the effective assistance of trial
    counsel. We conclude that the trial court did not err in its evidentiary rulings, nor
    did the court err in denying Underwood’s motion for acquittal. We also conclude
    that the State did not commit prosecutorial misconduct. Accordingly, the judgment
    of the trial court is Affirmed.
    I
    {¶ 3} On a January evening in 2010, Underwood and his girlfriend Amber
    Shatto were smoking crack cocaine at her trailer. Underwood left around 8:00 or
    9:00 p.m. and did not return until 5:00 a.m. the next morning.
    {¶ 4} Shortly before 10:00 p.m. on the same evening, Kurtis Wallace was
    headed to The Men’s Club. As he drove, he spoke on the phone with Shatto,
    whom he had recently met, and told her where he was going. In the parking lot of
    the club, Wallace was approached by Underwood, whom Wallace had known for
    many years.      Underwood asked Wallace for a couple of dollars.        As Wallace
    pulled his money out of his pocket, he saw that Underwood was holding a black
    handgun.      Underwood demanded that Wallace give him all of his money.
    Underwood grabbed Wallace’s $270 and ran away, heading into a nearby trailer
    3
    park. Initially, Wallace chased Underwood, but then stopped and called the police.
    {¶ 5} When deputies arrived on the scene, Wallace explained what had
    occurred and provided the officers with Underwood’s name and his physical
    description.   A canine unit was requested, and the canine was able to track
    Underwood to the area of a trailer in which his girlfriend Amber Shatto lived. A
    black coat was found in the street next to the trailer; Wallace identified it as being
    the coat Underwood was wearing during the robbery. However, the deputies were
    unable to find Underwood that night.
    {¶ 6} The following day, Wallace identified Underwood in a photo spread.
    Underwood was arrested a couple of weeks later.
    {¶ 7} Underwood was indicted on one count of Aggravated Robbery with a
    firearm specification. A jury found him guilty of Aggravated Robbery, but not guilty
    of the specification. Underwood filed a motion for a judgment of acquittal, arguing
    that the jury’s verdicts were inconsistent. The trial court overruled his motion and
    sentenced Underwood to five years incarceration.          From his conviction and
    sentence, Underwood appeals.
    II
    {¶ 8} Underwood’s First Assignment of Error is as follows:
    {¶ 9} “THE GUILTY JURY VERDICT WAS AGAINST THE MANIFEST
    WEIGHT OF THE EVIDENCE.”
    {¶ 10} In his First Assignment of Error, Underwood argues that his conviction
    for Aggravated Robbery is against the manifest weight of the evidence. When
    reviewing a judgment under a manifest weight standard of review, “[t]he court
    4
    reviewing the entire record, weighs the evidence and all reasonable inferences,
    considers the credibility of witnesses and determines whether in resolving conflicts
    in the evidence, the [factfinder] clearly lost its way and created such a manifest
    miscarriage of justice that the conviction must be reversed and a new trial ordered.
    The discretionary power to grant a new trial should be exercised only in the
    exceptional case in which evidence weighs heavily against the conviction.” State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    1997-Ohio-52
    , quoting State v. Martin
    (1983), 
    20 Ohio App.3d 172
    , 175.
    {¶ 11} Underwood was convicted of Aggravated Robbery, in violation of R.C.
    2911.01(A)(1), which states in pertinent part, “No person, in attempting or
    committing a theft offense * * *, shall * * * [h]ave a deadly weapon on or about the
    offender’s person or under the offender’s control and either display the weapon,
    brandish it, indicate that the offender possesses it, or use it.”
    {¶ 12} Underwood’s argument centers around his claim that Wallace’s
    testimony was not credible. Although a manifest weight claim permits a reviewing
    court to consider witness credibility, weight and credibility questions are primarily for
    the finder of fact. State v. DeHass (1967), 
    10 Ohio St.2d 230
    , paragraph one of
    the syllabus.     Substantial deference must be extended to the factfinder’s
    determination of credibility because the factfinder has had the opportunity to see
    and hear the witnesses on the stand.             State v. Lawson (Aug. 22, 1997),
    Montgomery App. No. 16288.
    {¶ 13} The State’s evidence shows that Wallace had known Underwood for
    23 years and that he immediately recognized Underwood as the robber. When
    5
    Wallace tried to give Underwood the couple of dollars that he had requested,
    Underwood pulled out a gun and demanded all of Wallace’s money. Underwood
    took the money and ran away, fleeing into a nearby trailer park, where his girlfriend
    Amber Shatto lived. The coat that Underwood was wearing during the robbery was
    found in the street, next to Shatto’s trailer.
    {¶ 14} Although Shatto and Underwood spent the early evening smoking
    crack together, Underwood left from about 8:00 or 9:00 p.m. until at least 5:00 a.m.
    the next day, while the robbery occurred shortly before 10:00 p.m. Moreover, after
    Underwood’s arrest, Shatto called Wallace and offered him money, in the hope of
    resolving the situation out of court.
    {¶ 15} The jury’s verdict shows that despite defense counsel’s efforts to
    discredit Wallace, the jury believed his testimony.    A jury has not lost its way
    “simply because it chose to believe the State’s witnesses and disbelieve Defendant,
    which it was entitled to do.”        State v. White, Montgomery App. No. 20324,
    
    2005-Ohio-212
    , ¶69.
    {¶ 16} Underwood’s First Assignment of Error is overruled.
    III
    {¶ 17} Underwood’s Second Assignment of Error is as follows:
    {¶ 18} “THE      STATE’S      REPRESENTATIVE       DURING      THE     TRIAL
    PROCEEDING COMMITTED PROSECUTORIAL MISCONDUCT AND THIS LED
    THE JURY TO AN IMPROPER FINDING OF GUILT.”
    {¶ 19} In his Second Assignment of Error, Underwood claims that the
    prosecutor committed prosecutorial misconduct during closing arguments by
    6
    arguing two facts not in evidence and by making unfounded accusations against
    Underwood’s attorney.
    {¶ 20} We begin by noting that Underwood did not object to two of the three
    alleged instances of prosecutorial misconduct, and has therefore forfeited all but
    plain error with regard to those two claims. State v. Wilson, Montgomery App. No.
    20910, 
    2005-Ohio-6666
    , ¶12, citation omitted. There is no plain error unless it is
    clear that, but for the error, the outcome of the trial would have been different. State
    v. Moreland (1990), 
    50 Ohio St.3d 58
    , 62.
    {¶ 21} When analyzing a claim of prosecutorial misconduct, we must
    consider whether the prosecutor’s statements were improper, and if so, whether
    those statements prejudicially affected the defendant’s substantial rights. State v.
    Lott (1990), 
    51 Ohio St.3d 160
    , 165. The touchstone of the analysis is the overall
    fairness of the trial, not the culpability of the prosecutor. Wilson, supra, at ¶10,
    citing State v. Moore, Montgomery App. No. 20465, 
    2005-Ohio-4531
    . “In reviewing
    allegations of prosecutorial misconduct, we review the alleged wrongful conduct in
    the context of the entire trial,” and if “it is clear beyond a reasonable doubt that a
    jury would have found the defendant guilty even absent the alleged misconduct, the
    defendant has not been prejudiced and his conviction will not be reversed.” 
    Id.,
    citing Moore, 
    supra.
     A prosecutor is entitled to considerable latitude during his
    closing argument, may freely comment on what the evidence presented at trial has
    shown and may comment on what reasonable inferences may be drawn therefrom.
    
    Id.,
     citing Moore, 
    supra.
     See, also, State v. Treesh (2001), 
    90 Ohio St.3d 460
    ,
    466; Lott, supra, at 165.
    7
    {¶ 22} Underwood first accuses the prosecutor of misconduct for accusing
    the defense attorney of intentionally misleading Wallace during cross-examination,
    while trying to impeach him on prior inconsistent statements.       During closing
    argument the prosecutor stated: “And it’s interesting because one thing that Kurtis
    was allowed to see was the transcript from the prior hearing where he testified.
    And Kurtis found where [the defense counsel] was trying to mislead him about his
    testimony regarding the phone call and Kurtis found in the records that he was
    allowed to see that the judge had asked him a very specific question about one
    single phone call that Amber had made to him.”
    {¶ 23} This comment accurately summarized a brief portion of Wallace’s
    cross-examination, when Wallace pointed out that the defense counsel was
    “misconstruing my words” and “mixing my words.” In particular, when Wallace was
    shown the transcript of his testimony from the preliminary hearing, Wallace pointed
    out to defense counsel that his line of questioning was misleading because the
    answers to the questions at the preliminary hearing were being taken out of context
    and were being misread. Thus, the prosecutor’s statements accurately reflected
    Wallace’s expressed belief that defense counsel was trying to mislead him.
    {¶ 24} Underwood also accuses the prosecutor of misconduct for arguing
    facts not in evidence when he said that Shatto had offered Wallace money for not
    testifying at the preliminary hearing. Wallace testified that both Underwood and
    Shatto had contacted him about “not showing up for court.” Shatto admitted on
    direct examination that she contacted Wallace in an attempt to settle the case
    without going to court, but she denied offering Wallace any money. The State’s
    8
    cross-examination of Shatto included the following colloquy:
    {¶ 25} “Q. And do you recall trying to negotiate with [Wallace] to pay him
    some money so he wouldn’t come to court?
    {¶ 26} “A. I wasn’t trying to pay him so he wouldn’t go to court. I was just
    trying to resolve the situation in a situation more –
    {¶ 27} “Q. Outside of the court process?
    {¶ 28} “A. Yeah.”
    {¶ 29} Although Shatto denied trying to pay Wallace not to appear in court,
    she acknowledged trying to resolve the situation outside of court, which would
    presumably involve compensating Wallace for his loss.               The prosecutor’s
    characterization of this evidence as Shatto having attempted “to pay off the victim”
    was a reasonable inference.
    {¶ 30} Finally, Underwood argues that it was misconduct for the prosecutor
    to say, during rebuttal argument, that Shatto had told Wallace that she wanted to
    hook up with him in order to set him up to be robbed. Wallace testified that he and
    Shatto had been speaking for several days prior to the robbery about hooking up.
    Although he had spoken with Shatto a few times on the evening of the robbery, he
    did not specifically state that he and Shatto had arranged to meet that night.
    Nevertheless, the State asserted that Shatto had arranged to meet Wallace at The
    Men’s Club that night. The defense objected, pointing out that Wallace did not
    testify that he and Shatto had specific plans for that night. The trial court sustained
    the objection.
    {¶ 31} Underwood insists that the trial court should have promptly given a
    9
    limiting instruction to the jury, but he offers no suggestion as to what instruction
    should have been given. A limiting instruction is normally an instruction that a jury
    may properly consider a piece of evidence for one purpose, but not for other
    purposes.   Here, we understand Underwood’s position to have been that the
    prosecutor’s comment was not proper argument at all – not that the jury could
    consider it for one purpose, but not for other purposes.           More importantly,
    Underwood did not request any relief beyond the sustaining of his objection to this
    line of argument. Considering the closing argument as a whole, we conclude that
    this single inaccuracy, an objection to which was sustained, does not warrant
    reversal of the judgment. The trial court did instruct the jury that the evidence does
    not include closing arguments, and a jury is presumed to follow the trial court’s
    instructions. See, e.g., State v. Jones, 
    90 Ohio St.3d 403
    , 414, 
    2000-Ohio-187
    .
    {¶ 32} Underwood’s Second Assignment of Error is overruled.
    IV
    {¶ 33} Underwood’s Third Assignment of Error is as follows:
    {¶ 34} “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION
    WHEN IT RULED THE DISPATCH RECORDS SOUGHT BY DEFENSE COUNSEL
    INADMISSIBLE.”
    {¶ 35} In his Third Assignment of Error, Underwood contends that the trial
    court should have admitted the police dispatch records into evidence. A trial court
    has broad discretion in the admission and exclusion of evidence, and an appellate
    court must not interfere with that determination “[u]nless the trial court has clearly
    abused its discretion.” State v. Apanovitch (1987), 
    33 Ohio St.3d 19
    , 25. The
    10
    abuse of discretion standard is defined as “‘[a]n appellate court’s standard for
    reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal,
    or unsupported by the evidence.’” State v. Boles, Montgomery App. No. 23037,
    
    2010-Ohio-278
    , ¶18, quoting Black’s Law Dictionary, Eighth Edition (2004), at 11.
    {¶ 36} We have previously held that “[a] police report is not admissible under
    the business-records exception in Evid.R. 803(6), if it recites hearsay statements
    received by the officer from others.” State v. Daniel, Montgomery App. No. 24151,
    
    2011-Ohio-2821
    , ¶15. Furthermore, because police reports are generally replete
    with inadmissible hearsay, they should not be submitted to the jury.           
    Id.,
     citing
    State v. Granderson, 
    177 Ohio App.3d 424
    , 
    2008-Ohio-3757
    , ¶77. We see no
    reason to treat police dispatch records differently than police reports.
    {¶ 37} The State contends that the dispatch record was being offered by
    Underwood to prove the place where the robbery occurred, which would be
    hearsay, since the dispatcher did not know where the robbery occurred, but was
    merely relaying the report of another.      Underwood contends that the dispatch
    record was being offered to prove the place to which the police were dispatched (in
    an effort to impeach the testifying police officers), which would not be hearsay
    contained within the dispatch record, since the dispatcher did know, of his or her
    own personal knowledge, to where the police were dispatched.               The record is
    inconclusive on this point, since the discussion concerning the State’s objection
    took place off the record. It is the appellant’s duty to portray error in the record.
    Underwood has failed to demonstrate, in this record, that the trial court erred in
    ruling that the dispatch record contained inadmissible hearsay evidence.
    11
    {¶ 38} Underwood’s Third Assignment of Error is overruled.
    V
    {¶ 39} Underwood’s Fourth Assignment of Error is as follows:
    {¶ 40} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S
    MOTION FOR ACQUITTAL.”
    {¶ 41} In his Fourth Assignment of Error, Underwood submits that the trial
    court should have granted his motion for judgment of acquittal because the jury
    rendered inconsistent verdicts when it convicted him of Aggravated Robbery, but
    found him not guilty of the attached firearm specification. Underwood concedes
    that we have previously held that a jury’s not-guilty verdict on a firearm specification
    does not create an inconsistent verdict that invalidates a guilty finding on the
    principal charge of Aggravated Robbery, in violation of R.C. 2911.01(A)(1). State
    v. Gardner, Montgomery App. No. 21027, 
    2006-Ohio-1130
    , ¶ 34. In Gardner, we
    stated that “[t]his court, as well as other Ohio courts, have consistently held that a
    finding of guilty on a principal charge but not guilty on a specification attached to
    the charge does not render the verdict inconsistent and thus invalidate the guilty
    verdict on the principal charge, at least where legally sufficient evidence supports
    the guilty verdict on the principal charge. State v. Wilson (January 21, 1992), Clark
    App. No. 2803; State v. Talley (1993), Montgomery App. No. 136839; State v. Boyd
    (1996), 
    110 Ohio App.3d 13
    ; State v. Woodson (1985), 
    24 Ohio App.3d 143
    .” Id.
    at ¶ 32. We explained that because a conviction for Aggravated Robbery is not
    dependent upon a specification, any specification must be considered after, and in
    12
    addition to, a finding of guilt on the principal charge. Id. at ¶ 33. “Accordingly, any
    determination as to the specification cannot change the finding of guilt on the
    principal charge.” Id., citing State v. Perryman (1976), 
    49 Ohio St.2d 14
    .
    {¶ 42} Underwood urges us to ignore the doctrine of stare decisis and to
    revisit this issue. We decline to do so.
    {¶ 43} Underwood’s Fourth Assignment of Error is overruled.
    VI
    {¶ 44} Underwood’s Fifth Assignment of Error is as follows:
    {¶ 45} “THE APPELLANT’S TRIAL COUNSEL RENDERED INEFFECTIVE
    ASSISTANCE OF COUNSEL, AND THESE MISTAKES LED THE JURY TO YIELD
    AN UNJUST VERDICT.”
    {¶ 46} In his Fifth Assignment of Error, Underwood contends that he was
    denied his right to the effective assistance of trial counsel. In order to prevail on a
    claim of ineffective assistance of counsel, the defendant must show both deficient
    performance and resulting prejudice. Strickland v. Washington (1984), 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    .             Trial counsel is entitled to a strong
    presumption that his conduct falls within the wide range of effective assistance, and
    to show deficiency the defendant must demonstrate that counsel’s representation
    fell below an objective standard of reasonableness. 
    Id.
     Underwood meets neither
    prong.
    {¶ 47} Underwood insists that trial counsel was ineffective for failing to object
    to two of the instances of prosecutorial misconduct argued in his Second
    Assignment of Error.        But we have concluded in Part III, above, that those
    13
    instances do not amount to prosecutorial misconduct.
    {¶ 48} Underwood also argues that trial counsel was ineffective for failing to
    object to Detective Saunders’s statement that no potential witnesses were
    interviewed at The Men’s Club because staff members are consistently
    uncooperative with police investigations. But because during the trial the defense
    attacked the thoroughness of the investigation, this testimony was relevant.       In
    cross-examining the deputies, Underwood’s attorney repeatedly stressed the fact
    that none of the deputies sought out possible witnesses at The Men’s Club. The
    defense also pointed out during closing argument that the deputies should have
    tried to seek out witnesses at the club, regardless of the anticipated lack of
    cooperation. Since the defense attacked the thoroughness of the investigation, it
    was appropriate for the State to ask the deputies to explain why they did not make
    any attempts to question anyone at the club.
    {¶ 49} Underwood’s Fifth Assignment of Error is overruled.
    VII
    {¶ 50} All five of Underwood’s assignments of error having been overruled,
    the judgment of the trial court is Affirmed.
    ..............
    DONOVAN and HALL, JJ., concur.
    Copies mailed to:
    Mathias H. Heck, Jr.
    Andrew T. French
    Daniel R. Allnutt
    Hon. Connie S. Price