State v. Caldwell , 2019 Ohio 3015 ( 2019 )

[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.