Opinion
No. 75080.
Date of Announcement of Decision April 6, 2000.
Criminal Appeal from the Common Pleas Court, Case No. CR-350867.
For Plaintiff-Appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, BY: PETER CORRIGAN (#0066104), Assistant County Prosecutor, The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-Appellant: RICHARD A. OVIATT, (#0025563), 2000 Standard Building, Cleveland, Ohio 44113-1701.
JOURNAL ENTRY AND OPINION
Defendant-appellant Woodfin Farmer, Jr. ("appellant") appeals from his conviction for possession of crack cocaine, less than one gram, in violation of R.C. 2925.11.
Appellant assigns the following errors for review:
I. WHETHER THE COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
II. WHETHER A GUILTY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL ARGUMENT "THIS IS SOMEONE WHO IS INVOLVED WITH CHILDREN IN A RECREATION DEPARTMENT . . .; AND IF YOU WANT TO EXONERATE THIS DEFENDANT AND SEND HIM BACK TO HIS JOB WITH THOSE KIDS IN THE RECREATION DEPARTMENT, PLEASE GO AHEAD."
IV. WHETHER THE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE TRIAL COURT'S FAILURE TO ALLOW CERTAIN CROSS-EXAMINATION OF THE ARRESTING OFFICERS.
V. WHETHER THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN HE WAS IMPROPERLY CROSS-EXAMINED IN A DEMEANING AND HUMILIATING MANNER BY THE PROSECUTING ATTORNEY.
VI. WHETHER THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY NOT ENFORCING A SUBPOENA REQUIRING THE POLICE OFFICER TO PRODUCE CERTAIN RECORDS.
VII. WHETHER ASSESSING THE DEFENDANT AN ADDITIONAL $10,000.00 FINE FOR COSTS OF PROSECUTOR, TRIAL AND APPEAL IS CONTRARY TO LAW.
Finding the last assignment of error to have merit, the judgment of the trial court is affirmed in part and reversed in part.
I.
On May 20, 1997, appellant was issued an indictment for one count of possession of drugs in violation of R.C. 2925.11. Appellant entered a plea of not guilty and the case proceeded to trial. Cleveland Police Officer Chris Hamrick testified that on January 31, 1997, at 3:45 a.m., he and Officer Perkins were southbound on East 116th Street in Cleveland. As the officers approached the intersection of East 116th Street and Miles Avenue, they observed a Porsche sitting in the parking lot of the Marathon Service Station. The Porsche was parked off to the side, away from the gasoline pumps. A male was leaning into the open passenger window of the car with his head and arms inside the vehicle. The Marathon station is located in an area where drug activity occurs. Many drug transactions take place with the seller standing next to the buyer's car window. The officers decided to pull into the service station to investigate further.
The officers drove into the parking lot. The male standing next to the Porsche immediately pulled away from the automobile's window and began walking away from the car, dropping something from his right hand as he did so. Officer Hamrick exited his police vehicle and approached the male, identified later as Milton Loftus. As Officer Perkins escorted Loftus to the police car, Officer Hamrick went to the area where Loftus had dropped the object. Officer Hamrick retrieved a small plastic bag containing what appeared to be five rocks of crack cocaine. Three more rocks of the apparent crack cocaine were on the ground. Loftus then was arrested.
The officers approached the Porsche in which appellant was a passenger. Appellant and Keith Stokes, the driver, were asked to step out from the automobile. As appellant opened the car door to comply, Officer Hamrick noticed a small object sitting on the rise where the door shuts, between the door and the passenger's seat. The object appeared to be a small rock of crack cocaine. The object later was determined to be .08 grams of crack cocaine. No other contraband or evidence was seized from the vehicle, Stokes, or appellant.
Officer Hamrick testified that he believed a purchase of drugs had taken place because furtive hand movements were observed in the automobile as the officers approached the service station and pulled into the parking lot. Officer Hamrick did not observe any money being exchanged.
Officer Perkins verified the testimony of his partner. Officer Perkins also testified he saw hand movements from both Loftus and appellant which looked as if some type of hand-to-hand transaction was taking place. Officer Perkins could not see what was being exchanged between the two men. Officer Perkins also saw the rock of crack cocaine when appellant opened the passenger's door.
Appellant testified in his own defense. Appellant was fifty-four (54) years old at the time of trial and employed as a custodian at the Thurgood Marshall Recreation Center in Cleveland. Appellant testified that he was awake at 3:00 a.m. on January 31, 1997, getting ready to arrive at the recreation center at 6:00 a.m., when an acquaintance, Rosa Grimes, rang his doorbell. She was accompanied by Keith Stokes. Appellant had not met Stokes prior to this. Both appeared to have been "partying." Stokes and Grimes brought a couple of beers with them. After visiting for a short period of time, Stokes asked appellant for a cigarette. Appellant did not have any cigarettes so appellant and Stokes left in Stokes' car to drive to the Marathon station to buy a pack of cigarettes. Stokes went inside the service station to purchase the cigarettes. While he was doing this, Loftus walked over to the Porsche and asked appellant what kind of car it was. Appellant stated the windows of the car were shut at the time. Stokes returned with a pack of cigarettes and spoke to Loftus. The police pulled up and Loftus walked away from the car. After Loftus was arrested, the police officer asked appellant to step out of the automobile and requested identification. Appellant was immediately arrested.
Appellant denied having any crack cocaine on January 31, 1997. He admitted to being convicted for drug possession nearly ten years before but stated he had not used drugs since. Appellant testified that he was suspended from his position at the recreation center following his arrest but would be reinstated if acquitted.
The jury convicted appellant on the possession of drugs charge. The trial court sentenced appellant to a twelve-month prison term. The trial court ordered appellant to pay court costs, a fine of two thousand five hundred dollars ($2500.00), and an additional ten thousand dollars ($10,000.00) for the costs of the prosecutor, trial, and appeal.
II.
Appellant's first assignment of error argues that the trial court erred in overruling appellant's Crim.R. 29 motion for acquittal. Appellant maintains that the evidence adduced at trial was insufficient to support a conviction for possession of drugs.
A trial court is required to grant a motion for acquittal made pursuant to Crim.R. 29 if the evidence is insufficient to support a conviction for the offense. State v. Pickett (1996), 108 Ohio App.3d 312, 314. A trial court shall not grant a Crim.R. 29 motion "if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus.
Sufficiency is a legal standard which is applied to determine whether the evidence admitted at trial is legally sufficient to support the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380.
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 (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. In essence, sufficiency is a test of adequacy. Whether the evidence presented in a case is legally sufficient to sustain a verdict is a question of law and a conviction based upon legally insufficient evidence constitutes a denial of due process. Thompkins, supra.
R.C. 2925.11(A) provides: "No person shall knowingly obtain, possess, or use a controlled substance." R.C. 2925.01(K) defines possession as follows:
"Possess" or "possession" means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.
Possession may be actual or constructive. State v. McShan (1991), 77 Ohio App.3d 781. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion and control over the contraband. State v. Wolery (1976), 46 Ohio St.2d 316, 332. Circumstantial evidence that the defendant was located in very close proximity to readily usable drugs may constitute constructive possession. State v. Barr (1993), 86 Ohio App.3d 227, 235; State v. Burston (May 5, 1994), Cuyahoga App. No. 65128, unreported.
Appellant emphasizes that the police officers testified that they did not see a purchase and argues that the cocaine could have been in the automobile before appellant entered. Appellant contends that proving possession requires more than the discovery of a small piece of rock cocaine in the automobile in which appellant was a passenger.
In State v. Bailey (Sept. 14, 1995), Cuyahoga App. No. 67333, unreported, the defendant was the passenger in a car. This court held that constructive possession existed where a rock of crack cocaine was found on the driver's seat because of the close proximity of the defendant to the cocaine. In the instant case, the crack cocaine was discovered in the area of the floor adjacent to the passenger side door. The rock of crack cocaine and defendant were in close proximity to each other with appellant able to exercise dominion and control over the contraband.
The police officers also observed hand movements between appellant and Loftus. These hand movements were an indication that a drug transaction was taking place. Furtive gestures can constitute some evidence of possession. State v. Thomas (May 18, 1995), Cuyahoga App. No. 67446, unreported.
Based upon the location of the rock of crack cocaine near appellant and the observation of hand gestures between appellant and Loftus, and the fact that the events took place at 3:45 p.m., the trial court did not err by overruling appellant's Crim.R. 29 motion for acquittal. The prosecution presented sufficient evidence proving that appellant constructively possessed the rock of crack cocaine.
Appellant's first assignment of error is overruled.
III.
In his second assignment of error, appellant contends his conviction was against the weight of the evidence. Appellant disputes the credibility of the arresting officers by arguing that their testimony was not reliable or believable.
When reviewing a challenge to the weight of the evidence, the test is whether, after reviewing the entire record and probative evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79 . An appellate court will review the evidence to determine if the greater amount of credible evidence offered at trial supports one side of the issue rather than the other. State v. Thompkins (1997), 78 Ohio St.3d 380.
Appellant asserts that the testimony of Officers Hamrick and Perkins was unreliable. Appellant argues the crack cocaine could not have been in plain view when appellant exited the vehicle. Appellant states that Officer Hamrick's testimony at the suppression hearing differed from his trial testimony because Officer Hamrick stated the cocaine was on the floor of the car. The transcript from the suppression hearing is not a part of the record on appeal. Even so, at trial, Officer Hamrick testified that, to him, the floor included the area right next to the door frame where the rock of crack cocaine was discovered. Any statement Officer Hamrick may have made that the cocaine was discovered on the floor of the car was consistent with his trial testimony.
Appellant also contends that the officers could not have observed movement in the Porsche because there was not enough time for the officers to have seen anything while they were driving down East 116th Street. Appellant maintains that the officers only would have had a split second to see any movement based on the speed at which the officers were driving. Appellant attempted to establish this same defense at trial and the jury chose to reject the argument. During cross-examination, appellant continually responded that the police officers lied at the trial. In closing argument, defense counsel repeatedly stated the police officers lied and had an interest in obtaining a conviction. The officers testified that they did have time to observe movement in the automobile, including after they pulled into the parking lot of the service station. The jury did not lose its way by deciding to believe the testimony of the two police officers.
Lastly, appellant seeks to cast doubt upon the officers' credibility by arguing that both officers would not have been on the passenger's side of the Porsche when appellant exited the vehicle. Appellant cross-examined Officer Perkins on this point. Officer Perkins answered that there was no standard procedure as to which side of a vehicle the officers should be on in this sort of situation. The manner in which two officers would have more than one person exit a vehicle is within the officers' discretion and the police vary their techniques. The jury was free to accept the officer's explanation and consider it to be credible.
Appellant's conviction is supported by the weight of the evidence.
Appellant's second assignment of error lacks merit.
IV.
Appellant's third and fifth assignments of error will be addressed together as both raise issues of prosecutorial misconduct. Appellant objects to the prosecutor's cross-examination regarding appellant's drug use.
A prosecuting attorney's conduct during trial does not constitute a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219. The effect of the prosecutor's alleged misconduct must be considered in light of the whole trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266.
A trial court enjoys broad discretion in the admission and exclusion of evidence. That discretion will not be reversed on appeal absent a clear abuse of discretion and only if the defendant was materially prejudiced. State v. Withers (1975), 44 Ohio St.2d 53, 55. Controlling the scope of cross-examination also lies within the trial court's discretion. State v. Slagle (1992), 65 Ohio St.3d 597, 605. Cross-examination pertaining to prior misconduct is not unfairly prejudicial where it is clearly probative of truthfulness or untruthfulness. State v. Amburgey (1987), 33 Ohio St.3d 115; State v. Williams (1981), 1 Ohio App.3d 156 . When any witness testifies, the credibility of the witness is put directly into issue. State v. Anderson (Aug. 29, 1990), Montgomery App. No. 11703, unreported.
Evid.R. 609 provides for cross-examination concerning a prior conviction. Appellant denied having cocaine in his possession on the night he was arrested. Appellant stated that he had not used drugs in nearly ten years since his arrest on drug charges shortly after his daughter's birth. The prosecutor could inquire as to appellant's conviction because the crime was committed less than ten years before appellant's trial on the current charge.
Appellant also objects to the questions following appellant's statement that he did not use narcotics because he had obligations and a job. Appellant then mentioned that the children at the recreation center loved him. The prosecutor asked if appellant "did crack" around the children at the recreation center. The prosecutor's question was a legitimate response to appellant's statements.
It was defense counsel who first sought to interject the issue of appellant's position with the Recreation Department into the proceedings. During cross-examination of the state's first witness, Officer Hamrick, appellant's attorney asked if the officer was aware appellant had been suspended from his employment subsequent to this incident. The trial court sustained the objection to the question. Defense counsel later proffered the line of questioning in which he wanted to establish that appellant would be terminated from his employment if convicted. The attorney wished to inquire whether the officer was influenced by someone from the Mayor's office or the Recreation Department regarding the officer's testimony in the instant case. The attorney stated that appellant's employer had a financial interest in the outcome of the case. Appellant repeatedly sought to interject this conspiracy theory into the proceedings in order to cast aspersions on the veracity of the officers.
On redirect, appellant testified as follows:
Q. Yes. By way of clarification, could you tell us, you were asked about your financial situation, with respect to the outcome of this case. Could you clarify that for us?
A. Well, the commissioner — when they taken me to the Fourth District jail, Mr. Stokes and I, the Commissioner of Parks and Recreation, he came to the jail and he suspended me there, and he told me that depending the outcome of this case, that they will reinstate me and give me my back pay if this case was resolved.
Q. Resolved? What does that mean?
A. If it was cleared up.
Q. If you were exonerated?
A. Exonerated, yes.
(Tr. 117).
The prosecutor then asked appellant the following questions:
Q. Do you think that was fair what the city did as far as your job? Was that fair? Is the city treating you fairly?
A. Well, not really because —
Q. Not really? You think that the city should employ people who are using crack on the street, buying crack; is that what you think?
A. I'm not using crack.
MR. OVIATT: Objection.
THE COURT: Overruled.
A. What bothers me is that I never should have been suspended —
Q. It's no big deal using crack.
A. — until I was found guilty. That's what I'm hurt about.
Q. It's no big deal using crack when you work with children in the Recreation Department?
A. The childrens love me and know me and they respect me there.
Q. You don't worry about that because when your daughter was born you were out smoking crack yourself anyways?
A. No, no, I wasn't. I told you I had stopped.
Q. Oh, you stopped?
A. And I have three more kids since then.
(Tr. 117-118.) Again, some of the prosecutor's inquiries were in direct response to appellant's statements concerning his employment status. However, the prosecutor did dwell too much on appellant's use of crack cocaine. There was no evidence appellant ever used crack cocaine at his place of employment. The prosecutor should not have continued to question appellant on this point past appellant's initial denial of using drugs while at work. However, when viewed in light of the testimony of appellant, the facts of the case show that appellant received a fair trial.
Appellant also objects to certain statements made by the prosecutor in closing argument. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. A prosecutor is afforded wide latitude in closing arguments. State v. Jacks (1989), 63 Ohio App.3d 200, 210. It is within the trial court's sound discretion to determine if a prosecutor has gone beyond the bounds permitted. State v. Benge (1996), 75 Ohio St.3d 136. A judgment will not be reversed if it is clear beyond a reasonable doubt that, absent the prosecutor's remarks, the jury would have found the defendant guilty. State v. Loza (1994), 71 Ohio St.3d 61, 78. Closing arguments must be viewed in their entirety to determine whether the disputed remarks were prejudicial. State v. Mann (1993), 93 Ohio App.3d 301, 312.
Appellant first objects to a remark made by the prosecutor that appellant is someone who is involved with children at the Recreation Department. The prosecutor's statement was in response to defense counsel's statement in closing argument that this was a victimless crime. Although better left unsaid, appellant was not prejudiced by the response to a defense argument. Obviously, the jury knew by then that appellant's work involved contact with children.
Appellant also points to the following statements made by the prosecutor:
It all adds up to his possessing that cocaine and it is perfectly reasonable for you to infer that. And if you want to exonerate this gentleman, this defendant, and send him back to his job with those kids at the Recreation Department —
MR. OVIATT: Objection.
THE COURT: Overruled.
MR. CORRIGAN: Please, go ahead. But I urge you, the evidence in this case does not support that type of disposition in this case. The evidence is clear.
(Tr. 134). Throughout trial, appellant made it clear that he would be reinstated to his position as custodian at the recreation center if acquitted. Therefore, the remark was a comment on the evidence admitted at trial. Still, a prosecutor is not to ask a jury to convict a defendant for any public policy reasons. The statement should not have been made during closing argument. However, the comment did not prejudice appellant because the jury knew that an acquittal would result in appellant regaining his job at the recreation center. Appellant repeatedly mentioned the status of his employment during trial, particularly during his own testimony.
A charge of prosecutorial misconduct must be placed against the context of what occurred during the entire trial. The police officers testified they viewed Loftus with his head and arms inside the passenger-side window of a vehicle parked to one side of a gas station at 3:45 a.m. Hand movements between Loftus and the passenger, appellant, were noted. This activity is consistent with a drug transaction. Loftus discarded a bag containing five rocks of cocaine while three more rocks fell to the ground from the bag. The police discovered a rock of cocaine, similar in size to the rocks of cocaine which were in the possession of Loftus, between the passenger door and the floor. The cocaine was located in the exact area where the officers observed the hand movements between Loftus and appellant take place. Based upon these facts, which were admitted at trial, the conduct of the prosecutor did not deprive appellant of a fair trial.
Appellant's third and fifth assignments of error are overruled.
V.
In his fourth assignment of error, appellant argues the trial court's limitation of cross-examination resulted in appellant being denied a fair trial. Specifically, appellant objects to the trial court's ruling prohibiting cross-examination about Officer Hamrick's background. Appellant also refers to the trial court's refusal to permit questions of the police officers regarding their knowledge of whether appellant had been suspended from his employment as a result of his arrest.
The right of a criminal defendant to confront and cross-examine witnesses is secured by the Sixth Amendment to the United States Constitution. Pointer v. Texas (1965), 380 U.S. 400. Cases involving the Confrontation Clause generally fall into two categories (1) cases involving the admission of out-of-court statements, and (2) cases involving restrictions imposed by law or by the trial court on the scope of cross-examination. Delaware v. Fensterer (1985), 474 U.S. 15, 18. However, the Confrontation Clause does not guarantee a defendant the most effective means of cross-examination. A defendant is guaranteed "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 20. The right of cross-examination includes the right to impeach a witness's credibility. State v. Green (1993), 66 Ohio St.3d 141, 147. Every defendant must be provided the opportunity to cross-examine the witnesses and provided an occasion for the jury to weigh the demeanor of the witnesses. State v. Talbert (1986), 33 Ohio App.3d 282, 285. One purpose of cross-examination is to disclose a witness's motives, inclinations, and relative situation in respect to the parties. Aluminum Industries, Inc. v. Egan (1938), 61 Ohio App. 111.
However, the Confrontation Clause does not prevent a trial court from imposing limits on defense counsel's inquiry into the potential bias of a prosecution witness.
Trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.
Delaware v. Van Arsdall (1986), 475 U.S. 673, 679. The limitation of cross-examination lies within the sound discretion of the trial court. That discretion will not be disturbed upon appeal absent a clear showing of an abuse of discretion. State v. Acre (1983), 6 Ohio St.3d 140, 145.
The first instance of limitation of cross-examination to which appellant objects occurred when defense counsel asked Officer Hamrick what he did between high school graduation and the time he became a police officer. The trial court correctly sustained the objection to the question. The information is irrelevant to the proceedings. See Evid.R. 401.
Later, defense counsel asked Officer Hamrick if he was aware that appellant had been suspended from his employment after his arrest on the drug possession charge. The trial court sustained the objection on the issue of relevance. As stated above, defense counsel proffered on the record the line of questioning which he attempted to pursue with Officer Hamrick. The trial court's ruling was correct. Appellant's conspiracy theory is without foundation and far-fetched, at best. The right to cross-examination does not include pursuing any wild line of questioning in a last gasp attempt to create reasonable doubt.
Appellant's fourth assignment of error is meritless.
VI.
In his sixth assignment of error, appellant contends the trial court erred by not enforcing a subpoena the defense served upon Police Officer Hamrick. A copy of the subpoena dated June 19, 1998, is in the record. The subpoena directs Officer Hamrick to bring all records pursuant to the criminal charge against appellant, including the police inventory of the personal property of appellant and Keith Stokes. At trial, Officer Hamrick denied receiving the subpoena. He did not bring the requested materials to trial. Officer Hamrick testified he reviewed the reports and file prior to trial and that, according to Stokes' property slip, Stokes did not have a pack of cigarettes in his possession at the time of his arrest. Officer Hamrick stated it was possible Stokes left a pack of cigarettes in the car.
Appellant argues that the subpoena was issued in order to establish that Stokes had an unopened pack of cigarettes in his possession at the time of his arrest. Appellant contends that this information would have helped corroborate appellant's version of events.
A criminal defendant is guaranteed the right to compulsory process to procure the attendance of witnesses in his favor by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. State v. Denis (1997), 117 Ohio App.3d 442. Crim.R. 17(C) provides that a subpoena may be used to command a person to produce documentary evidence.
Officer Hamrick denied receiving the defense subpoena. The record before this court does not indicate whether service was perfected or not. Even if Officer Hamrick was served with the subpoena, any error by the trial court in not enforcing the subpoena was harmless. An error will be deemed harmless if it did not affect the accused's substantial rights. A defendant is not guaranteed a trial free from all error but only those which are prejudicial. An error is not grounds for reversal unless there is a reasonable possibility that the unlawful testimony contributed to the conviction. Crim.R. 52(A); State v. Brown (1992), 65 Ohio St.3d 483.
If Stokes had purchased a pack of cigarettes, it does not necessarily follow that appellant and Stokes did not then also purchase or attempt to purchase crack cocaine. The decision to buy the drugs may have been made on the spur of the moment. Also, Officer Hamrick testified that there could have been a package of cigarettes in the automobile. The production of the property slip would not have exonerated appellant or significantly contributed, if at all, to his acquittal or conviction. Appellant was not prejudiced.
Appellant's sixth assignment of error is overruled.
VII.
Appellant's seventh assignment of error challenges the trial court's entry ordering appellant to pay ten thousand dollars ($10,000.00) for the costs of the prosecutor, trial, and appeal. Appellant asserts that the trial court lacked a legal basis for assessing the costs.
R.C. 2947.23 provides:
In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. If a jury has been sworn at the trial of a case, the fees of the jurors shall be included in the costs, which shall be paid to the public treasury from which the jurors were paid.
The statute does not mention the costs related to an appeal. Those costs will be assessed by the appellate court, if necessary. Therefore, the trial court erred by including any costs of an appeal in the order.
Although the trial court does have statutory authority to assess a convicted defendant the costs of the prosecution, the figure assessed against the defendant can not be arbitrary but must reflect the actual costs of the prosecution. The ten thousand dollar ($10,000.00) amount levied against appellant by the trial court provides no indication of how the trial court arrived at this figure or what costs are included in the assessment. Certain fees have been disallowed by other courts. In State v. Watkins (1994), 96 Ohio App.3d 195, the court held that a three hundred dollar ($300.00) charge for a pre-sentence report was not a proper expense chargeable under R.C. 2947.23. Only the costs related to the process of the trial could be assessed and not those costs incurred for probation. In State v. Burns (Mar. 15, 1999), Marion App. No. 9-98-21, unreported, the Third District Court of Appeals refused to allow the inclusion of the cost of the defendant's court-appointed attorney fees under R.C. 2947.23.
Because it cannot be determined what costs were included in the ten thousand dollar ($10,000.00) figure assessed against appellant, the trial court's journal entry is vacated as to the ten thousand dollars ($10,000.00). The case is remanded to the trial court on this issue for a determination of the actual costs of the prosecution against appellant.
Appellant's seventh assignment of error is well-taken.
Judgment affirmed in part and reversed in part and remanded.
The judgment is affirmed in part, reversed in part and remanded for further proceedings consistent with this Journal Entry and Opinion.
It is ordered that appellee recover of appellant its costs herein taxed.
The Defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES M. PORTER, ADM.J., CONCURS; ANNE L. KILBANE, J. DISSENTS.
____________________________ LEO M. SPELLACY, JUDGE.
I respectfully dissent from the majority on assignments of error three, five and six. Judge Daniel Gaul should have sustained the objections to Assistant Prosecutor Peter Corrigan's line of questioning on Farmer's alleged cocaine use, and abused his discretion by allowing Corrigan to make inappropriate and prejudicial comments during his closing arguments. Moreover, I would find that failing to enforce the subpoena duces tecum issued to a witness violated Farmer's constitutional right to compulsory process. The judgment should be reversed and a new trial ordered.
The Ohio Supreme Court, in discussing the role of prosecuting attorneys in State v. Lott (1990), 51 Ohio St.3d 160, 165-166, 555 N.E.2d 293, noted:
* * * [H]e is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States (1935), 295 U.S. 78, 88.
* * * Prosecutors must avoid insinuations and assertions calculated to mislead. (Citing State v. Smith (1984), 14 Ohio St.3d 13, 14-15).
It is well settled that the "conduct of a prosecuting attorney cannot be made a ground of error unless the conduct deprived the defendant of a fair trial." State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473 N.E.2d 768, 793. We, therefore, first examine whether the prosecutor's questions and remarks were improper and then, if they prejudicially affected substantial rights of a defendant. Lott, supra. A criminal defendant receives a "fair trial" only if it is clear, beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found the defendant guilty. Maurer and Smith, supra.
On opening statement, the assistant prosecutor advised the jury that he was relying only upon circumstantial evidence to prove Farmer's guilt. Farmer's credibility was important to both the prosecution and the defense. The assistant prosecutor's cross-examination of Farmer follows:
Q. I guess my first question has to be, did you have crack cocaine that night?
A. No, sir, I didn't.
Q. You're no stranger to drugs, though; isn't that true?
Oviatt: Objection.
Judge: Overruled.
A. No, I'm not, I'm not no stranger. I haven't done anything in about ten years.
Q. You haven't done anything in about ten years?
A. As far as getting high.
Q. As far as getting high?
A. Right.
Q. Well, you were convicted —
Oviatt: Objection.
— about ten years ago; isn't that true?
Judge: Overruled.
A. Right soon after my daughter was born, Mercedes, I stopped.
Q. And what were you convicted of?
Oviatt: Objection.
Judge: Overruled.
A. I had a stem in the car. A girl and I was in the car.
Q. You had what in the car?
A. A stem. A stem.
Q. Explain to a jury what a stem is.
A. A stem is a piece of glass that goes in a pipe, and you drop cocaine in it, or reefer or whatever, and you smoke it.
Q. And you could smoke crack cocaine with that; isn't that true?
A. Yes, crack cocaine or weed.
Q. So you have smoked crack cocaine in the past.
Oviatt: Objection.
Judge: Overruled
A. Right. Like I say, when my daughter was born, she was born May of `88, May 3rd of `88.
Q. So you're celebrating by smoking crack.
Oviatt: Objection.
A. No, no.
Judge: Overruled.
A. No, I wasn't celebrating by smoking crack. I just, I just stopped then, I'd say, after she was born. I caught this last case in June, June of `88, and I haven't done anything since.
Q. Okay.
A. I'm going to tell you the truth.
Q. You are?
A. Yes, I am, because I don't have anything to hide.
Q. But you got a lot to lose, don't you?
A. Not really.
Q. Not really?
A. No.
Q. It's no big deal to be convicted of this.
A. Well, I want my job and I would like my back pay because I'm not, I'm not guilty. I'm innocent.
Q. Your back pay?
A. Right. I was just at the wrong place at the wrong —
Q. So you have some money riding on this case; is that what you are saying?
A. Well, I have my — yeah, right.
Q. So you have a big incentive to lie, don't you?
A. Not really.
Q. A lot of money's not incentive to lie?
A. No. I wouldn't lie because I still be —
Q. Going to jail is not an incentive to lie?
A. I wouldn't want to go to no jail, no, sir.
Q. Spent some time in jail on your last case, right?
Oviatt: Objection.
Judge: Overruled.
A. I got two years probation. I paid my restitution. I done right. I reported every month and they let me off early, Miss Robinson.
Q. Let me see if I understand you correctly. You want this jury to believe today that you normally get up at 2:30 or 3:00 in the morning to go to work?
A. Right.
Q. Okay, and people drop by often when you're up at 2:30, three in the morning?
A. No, no, no. That's the first time that she done that.
Q. Just when people are partying they stop by to your place.
A. We, she done it, right. She had done it. No, peoples don't stop by.
Q. Because you've partied with her in the past; isn't that true?
A. Well, yeah, I have partied with her but not like that.
Q. Smoking crack?
A. No, no.
Q. Pot?
A. No. You can not condemn me because I don't condemn someone what they do. If she smoke or if they smoke, they get high, that's them. I don't have to do it. I have obligations and I have a job to go to and I does this. The kids at Thurgood, they love me, and I take care of my business. I don't miss no days there.
Q. You do crack around the kids at Thurgood?
A. I do not do any crack.
* * *
Q. * * * You think that the city should employ people who are using crack on the street, buying crack; is that what you think?
A. I'm not using no crack.
Oviatt: Objection.
Judge: Overruled.
A. What bothers me is that I never should have been suspended —
Q. It's no big deal using crack.
A. — until I was found guilty. That's what I'm hurt about.
Q. It's no big deal using crack when you work with children in the Recreation Department?
A. The childrens love me and know me and they respect me there.
Q. You don't worry about that because when your daughter was born you were out smoking crack yourself anyways.
A. No, no, I wasn't. I told you I had stopped.
Q. Oh, you stopped?
A. And I have three more kids since then.
On closing argument, the assistant prosecutor stated to the jury:
Corrigan: Victimless crime? I don't think so. Ask police officers who are shot on the job trying to take care of people on drugs. And it burns me up that this comes from — this is someone who is involved with children in a Recreation Department.
Oviatt: Objection
Judge: Overruled.
Corrigan: Please do not convict Mr. Farmer because of his prior drug arrests. But think about that when you are evaluating his ability to tell the truth in what he said on the witness stand. * * *
* * *
Corrigan: Although I do think its significant that the dealer pled guilty to the felony. And it's significant —
Oviatt: Objection.
Judge: Overruled.
* * *
Corrigan: It all adds up to his possessing that cocaine and it is perfectly reasonable for you to infer that. And if you want to exonerate this gentleman, this defendant, and send him back to his job with those kids in the Recreation Department —
Oviatt: Objection.
Judge: Overruled.
Corrigan: Please go ahead. * * *
* * *
Judge: Thank you very much, Pete.
Under Evid.R. 609, a judge has the discretion to exclude evidence of a prior conviction for impeachment purposes "where the court determines that the probative value outweighs the danger of unfair prejudice or confusion of the issues, or of misleading the jury." State v. Goney (1993), 87 Ohio App.3d 497, 501, 622 N.E.2d 688, 691. See, also, State v. Wright (1990), 48 Ohio St.3d 5, 548 N.E.2d 923. He is required first to ascertain that the purpose for the introduction of the conviction is admissible. The conviction may be used only to attack credibility; it is inadmissible as evidence of bias and prejudice, character evidence, etc., or if its probative value does not outweigh its unfairly prejudicial effect. The judge also may limit questioning to only the name of the conviction, time and place of conviction and punishment. Wright, supra. In making this determination, a number of factors need to be considered: (1) the nature of the crime; (2) recency of the prior conviction; (3) importance of defendant's testimony; (4) centrality of the credibility issue; and, most importantly for the instant case, (5) similarity between the crime for which there was a prior conviction and the crime charged. Goney, supra. The need to carefully consider the admission of a prior conviction of an accused for impeachment purposes is driven by the possibility of the jury misusing the prior conviction as evidence of propensity or general character. Id.
The Goney court went on to state:
"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that `if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity." [ Id. at 501, quoting Gordon v. United States (C.A.D.C. 1967), 383 F.2d 936.]
Accordingly, the state bears the burden of showing that the probative value of the prior conviction outweighs the prejudicial impact. Id. See, also, Evid.R. 609(A)(2). Upon its admission, the judge should immediately inform the jury of the limited purpose for which this evidence is being offered. Id. In Farmer's case this was not done. Indeed, it remains unclear exactly what crime Farmer committed in 1988 except that it was drug related, which could provide a jury with much speculation. The actual facts supporting Farmer's earlier conviction likely were far less prejudicial than the assistant prosecutor's speculation and innuendo. The majority wrongly states that Farmer admitted that he was convicted for drug possession, when in fact his testimony shows only that he possessed drug paraphernalia, and the jury never was told what offense Farmer was convicted of committing. Moreover, the questioning went far beyond proving "the fact of the conviction," as stated in Evid.R. 609(F), and cannot be supported under any reasonable construction of Evid.R. 609.
The purposes for questioning on Farmer's prior conviction also fell outside the bounds of impeachment. The testimony was, therefore, admitted for unlimited purposes, inviting the jury to arrive at any possible conclusion — the most obvious being that Farmer was convicted of smoking crack while his first child was being delivered in the hospital, continued to use illegal drugs, and that he used his job to recruit children into lives of drug abuse. Moreover, the objectionable questioning cannot be supported under any reasonable construction of Evid.R. 609, as it went far beyond proving "the fact of the conviction." Evid.R. 609(F). Thus there must be some other basis for allowing the assistant prosecutor's questions and comments.
Through citations to State v. Amburgey (1987), 33 Ohio St.3d 115, 515 N.E.2d 925, and State v. Williams (1981), 1 Ohio App.3d 156, 440 N.E.2d 65, the majority suggests without analysis that the evidence of Farmer's prior conviction was submitted through cross-examination by the assistant prosecutor to prove Farmer's character for truthfulness or untruthfulness pursuant to Evid.R. 608(B). However, the majority overlooks the purpose of that rule, which is directed to the witness's character for truthfulness, as compared with the purpose of Evid.R. 609 which uses a prior conviction to impeach general credibility.
If evidence of any prior conviction is now admissible under Evid.R. 608 without reference to Evid.R. 609, the majority has brought forth a new and dangerous precedent. Historically, Evid.R. 608(B) provided that the prosecutor may inquire into specific instances of a witness's conduct in order to attack his character for truthfulness. Evidence and questioning concerning a prior conviction is admissible only if the mandates of Evid.R. 609 were satisfied. A judge must first assess whether a conviction is more probative than prejudicial under Evid.R. 609; if the conviction is found inadmissible, the prosecutor may not thwart that determination by asking questions about the conviction under Evid.R. 608. The prosecutor cannot be allowed to admit, under Evid.R. 608, evidence that would be inadmissible as unduly prejudicial under Evid.R. 609. If such a result were possible, Evid.R. 609 would be pointless.
Regardless of whether the questioning was based on the conviction or other specific acts, the majority cannot justify the questioning under Evid.R. 608 or any other rule. Absent a goodfaith belief that a question has a factual predicate, it is improper:
`[T]o attempt to communicate by innuendo, through the questioning of witnesses when the questioner has no evidence to support the innuendo.' State v. Gillard (1988), 40 Ohio St.3d 226, 230, 533 N.E.2d 272 (quoting State v. Williams (1977), 51 Ohio St.2d 112, 119, 364 N.E.2d 1364, 1368).
The prosecutor simply cannot ask questions under Evid.R. 608 unless he can show at least a good faith belief that the question has a factual predicate. Gillard, 40 Ohio St.3d at 231, 533 N.E.2d at 278. The assistant prosecutor had absolutely no basis for questioning Farmer in this manner. His conduct was not only beyond the bounds of objective good faith, it resembled the vaudevillian "Have you stopped beating your wife?" routines. The most disheartening fact of this case is that it illustrates what the Ohio Supreme Court and this court refer to as increasing and escalating incidents of misconduct. State v. DePew (1988), 38 Ohio St.3d 275, 528 N.E.2d 542, cert. den. 489 U.S. 1042.
Furthermore, questioning under Evid.R. 608 must be "clearly probative of the witness's character for truthfulness." State v. Brooks (1996), 75 Ohio St.3d 148, 151-52, 661 N.E.2d 1030, 1035. The questions were not addressed to Farmer's past incidents of truth-telling; the questions were directed toward an alleged (and baseless) penchant for drug use and corrupting children's morals, which have nothing to do with a character for truthfulness. See Brooks, supra (arrest for complicity not clearly probative of truthfulness). Like Judge Gaul, the majority has not addressed, much less analyzed, any of the requirements for admitting evidence under Evid.R. 608 or 609.
The questioning also fails to show bias under Evid.R. 616, as discussed in Brooks, supra. Although the avoidance of a second conviction might be a motive for misrepresentation, the accusations about Farmer's conduct with children show no such motive. Moreover, regardless of the theory one attempts to use, the questioning would be inadmissible under Evid.R. 403 because it was grossly unfair.
For the same reasons, the assistant prosecutor's questioning was inappropriate even if one believes that Farmer put his character in issue by testifying that the children at his job loved him. Even if a court could make this finding, the cross-examination remains inappropriate because it consisted of heinous, baseless allegations. The necessity of a good faith belief for questioning applies at all times. It makes no difference whether the questioner is attempting to impeach the witness's character for truthfulness, to show bias, or to impeach some other aspect of the defendant's character when he has put his character in issue.
One also must remember that Farmer was a custodian, not a teacher.
I have found no justification, under any rule of evidence, for allowing the assistant prosecutor's questioning. Even if some admissible purpose was found, there are compelling reasons to exclude the questioning under Evid.R. 403. The right to cross-examine witnesses does not include the right "to disregard sound evidentiary rules." Amburgey, 33 Ohio St.3d at 117, 515 N.E.2d at 927.
The majority submits that the assistant prosecutor's continued references and questions to Farmer about drug use were only offered as responses to issues first broached by Farmer. A review of the dialogue, supra, with allusions to things not in evidence and known by the prosecutor to be either untrue, misleading, irrelevant, and prejudicial does not support the majority's conclusion that the questions were "a legitimate response to appellant's statements."
The majority first states that Farmer brought the questioning upon himself through defense counsel's questioning of Officer Hamrick, as follows:
Q. (by Mr. Oviatt) Are you aware, Officer, that Mr. Farmer has been suspended from his employment subsequent to this incident?
MR. CORRIGAN. Objection.
THE COURT. I'm going to sustain this. This is absolutely irrelevant.
The majority then points to Farmer's attorney's proffer of evidence as establishing that Farmer raised the issue and brought the assistant prosecutor's questions upon himself. The majority's opinion wrongly assumes that the baseless questioning was somehow a proper response to a proffer. Such reasoning distracts attention from the real issue. One cannot "open the door" to prosecutorial misconduct.
However, even if one accepts the majority's reasoning as relevant, Farmer's attorney's action cannot justify the assistant prosecutor's conduct. The proffer was made outside the jury's presence, was again rejected by Judge Gaul, and no further mention of Farmer's suspension was made until raised by the assistant prosecutor. His attorney's single question to Officer Hamrick, objected to and sustained, cannot form the basis for the assistant prosecutor's conduct here. The majority makes inconsistent determinations; finding that Judge Gaul correctly denied defense counsel's attempt to introduce Farmer's employment as an issue, while at the same time allowing the assistant prosecutor to question Farmer on the same, irrelevant issue.
On direct exam, Farmer's only reference to his employment was to establish that he was awake at 3:00 a.m. because he began work at 6:00 a.m. Although he again stated that he worked for the city of Cleveland, no further mention of his suspension was made. Prior to the prosecutor's cross-examination of Farmer, the only mention of Farmer's suspension before the jury was the single question posed to Officer Hamrick, objected to and sustained.
The majority mistakenly claims that Farmer "repeatedly sought to interject this conspiracy theory into the proceedings * * *." This simply is not true. Defense counsel made no further attempt to establish bias when Judge Gaul sustained the State's first objection. Furthermore, the question the jury heard, concerning Farmer's suspension, did not itself suggest the officers' bias or any "conspiracy theory." Further questions were necessary before the purpose was apparent to the jury.
The first references to Farmer's suspension and "conspiracy" defense made before the jury came in the assistant prosecutor's cross-examination, as follows:
Q. Where was the crack found? Could you please show that to —
A. I don't know.
Q. Oh, you don't know?
A. No.
Q. The officer didn't show you where it was.
A. No. They took me and put me in the police car.
Q. Okay.
A. They was showing Mr. Stokes.
Q. That's right. They arrested you because you said you worked for the city. That's when they arrested you.
* * *
Q. That's all a lie. All those people came in here to lie.
A. It wasn't but two.
Q. Just to get you?
A. It wasn't but two, the two officers.
Q. That's what they are here to do, just to get you?
A. I don't know. I don't know why they said this.
Q. Because you work for the city?
Neither Farmer nor his counsel raised the issue after Judge Gaul rejected it. It was only after the assistant prosecutor's inappropriate questioning that Farmer's counsel addressed the issue on redirect. It is not true that Farmer or his attorney "repeatedly interjected" employment issues. Nor is it true, as the majority states, that "[t]hroughout trial, appellant made it clear that he would be reinstated to his position * * * if acquitted." Farmer's only references to this issue were elicited by the assistant prosecutor on cross-examination, followed by his attorney's redirect, and the assistant prosecutor's further references on re-cross. Furthermore, the most damaging part of the assistant prosecutor's questioning remains his baseless claims that Farmer was corrupting children with drugs. Even if he could properly question Farmer about his interest in receiving back pay, this cannot justify the line of questioning employed.
It was the assistant prosecutor who elicited Farmer's answers about his desire to be reinstated to his job and then repeatedly, despite Farmer's denial, referred to Farmer's alleged continued use of crack cocaine on the job and in front of children knowing it could not be proven. The majority agrees that the assistant prosecutor should not have continued to question appellant on this point but, somehow, justifies the conduct by finding "in light of the testimony of the appellant" Farmer received a fair trial.
The majority concludes without explanation that the assistant prosecutor's questioning was a "legitimate response" to Farmer's testimony that the children at his job loved him. An accused does not waive his right to the protection of the Rules of Evidence when he takes the stand. No good-faith basis for these questions can be propounded, much less shown. Gillard, supra. Despite the fact that nothing in the rules sanctions the attack made on Farmer here, the majority condones it without ever explaining how Farmer opened the door to baseless claims that he was corrupting children while at his job. The prejudice is unmistakable; any politician, advertiser, or Hollywood producer can testify to the power of imagery aimed at protecting the innocence of children. Those who believe that an innocent accused should jump at the chance to testify in his own defense should have second thoughts after reading this transcript.
This is not a simple case of accidental disclosure or an isolated remark, tempered by a prompt admonishment to the jury. The assistant prosecutor deliberately hammered at this irrelevant and unfair line of questioning. The judge tacitly approved the misconduct by overruling repeated objections and allowing the assistant prosecutor to continue unbridled. Any question concerning the relevant events of the crime charged became secondary to the assistant prosecutor's baseless caricature of Farmer. The majority opinion not only condones the denial of Farmer's constitutionally guaranteed right to a fair trial, its ill-considered precedent threatens justice in future cases. The majority essentially holds today that a prosecutor is allowed to harangue witnesses with baseless allegations and make improper remarks with impunity, and that a trial judge has the discretion to ignore the basic tenets of Evid.R. 608 and 609.
In closing argument, the assistant prosecutor stated that Farmer had prior arrests, told the jury that the crack was found in "his" (meaning Farmer's) car, stated that Farmer was in a high drug area" (Farmer was at a gas station five blocks from his home), spoke of police officers shot on the job "trying to take care of people on drugs" and his personal outrage about Farmer having contact with children on his job. Most condemnatory was the assistant prosecutor's question to an arresting officer designed to obtain the information that Loftus pled guilty to "a felony" and the car's driver, Stokes, pled guilty to a misdemeanor. He referred to the "dealer's" plea of guilty as being "significant" knowing full well that Farmer would be bound by inferences drawn by the jury. Not only am I at a loss to explain how reference to a dealer's guilty plea was a response to anything in the defense argument, this court was reversed on that same conclusion in State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883.
The majority also claims that the assistant prosecutor's remarks, in his rebuttal on closing argument, referring to his loathing of Farmer for killing policemen and corrupting children, were a legitimate response to defense counsel's argument of a "victimless crime." Farmer's attorney made no reference to Farmer's job in his closing argument, no reference to his back pay, and no reference to his contact with children. Toward the end of his rebuttal, the assistant prosecutor improperly focused the jury's attention on an irrelevant, unfair, and highly prejudicial line of rhetoric that certainly was not "interjected" by Farmer or his attorney, but by the assistant prosecutor himself.
The prosecutor also stated in closing rebuttal that "I highly doubt they snapped the cuffs on him because he works for the City of Cleveland." Again, defense counsel did not raise this issue after his proffer was denied, and did not argue the issue in closing.
Even when admitting that the assistant prosecutor's actions were wrong, the majority inexplicably states that Farmer was not prejudiced. I cannot agree that, without this misconduct, Farmer would have been convicted. The blatant plea to protect children, combined with references to other persons' guilty pleas, the improper credibility attacks, and the failure to specify Farmer's conviction, were substantial parts of the prosecution's case and had significant effects. Moreover, the evidence of Farmer's guilt was not so overwhelming that the assistant prosecutor's misconduct paled by comparison. It was entirely circumstantial. A new trial is required:
when the prosecutor has misstated facts, put words into witnesses' mouths, spoke as if from personal knowledge, assumed prejudicial facts not in evidence, bullied witnesses, and conducted himself in a `thoroughly indecorous and improper manner.'
State v. Smidi (1993), 88 Ohio App.3d 177 at 183, quoting Berger v. United States (1935), 295 U.S. 78, 84.
This court, in State v. Mann (1993), 93 Ohio App.3d 301, 312 set out the elements to be considered in determining whether a prosecutor's statements amount to misconduct:
(1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant. Another factor * * * is whether the remarks prejudicially affected substantial rights of the defendant. State v. Smith (1984) 14 Ohio St.3d 13, 14, 470 N.E.2d 883, 885.
The nature of the assistant prosecutor's questions and remarks were improper and prejudicial; objections were made and overruled; no corrective instructions were given at all; and the evidence was circumstantial and based upon finding a rock of crack cocaine on the floor of the car and Loftus' "furtive" hand movements in the car. The police officers' stories are subject to question; it is unclear whether they could have seen the events in the detail described while passing by the scene in a moving car, and there is some question concerning the "plain view" discovery of a small piece of crack cocaine in the car. If the assistant prosecutor's improper remarks and questions are removed from this transcript, it is not clear "beyond a reasonable doubt" that a jury would have found Farmer guilty. Smith, supra, and State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768. The majority apparently has chosen to ignore its own published benchmarks for prosecutorial misconduct. Taking into consideration the entirety of this trial, the judge abused his discretion in permitting the assistant prosecutor to go beyond the bounds permitted. Farmer was not given a fair trial.