unjussinL.

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

ApPellee,

V e

ERIC RYAN,

Appellant$

a

Case Noa 13OiiOOn Appeal form the CuyahogaCounty Court of Appeals,Eighth Appellate District

Court of AppealsCase Nos 98101

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ERIC RYAN

Eric Ryan#A622-413Mansfield Correctional Inst.P.O. Box 788Mansfieldg Ohio 44901

COUNSEL FOR APPELLANT

CLERK OF COURTSUPREME CCURT OF OHlu

ECEEDV E DDJAN 18 2013

Timothy J. McGintyCuyahoga County ProsecutorThe Justice Center129D Ontar i o St.9th FloorCieveland, Ohio 4013

COUNSEL FOR APPELLEE

CLERK OF COURTSUPREME COURT OF OHIO

JAN 182013

TALLE , OF GONTENTS

Pa2e No.

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESIION .............................. I

S1 A1 6MEi^ T OF i HE CASE ANp} FAyTS ................... w a . . w . . s r a . . w s s e • 2

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LRW a .... . a ... .............. 7

Proposition oflaw 1: ..............e...............e.....s...... 7

PropQsi'^^^^ of law II:.s........o...e.ae...e..s...a.as.s#e...ss• to

1`ropVsii,ion of law IjI.....o......sr...s.a......s..we..aa#es.a#. 13

CONCLUSION ........ 0 o a # a . . a # . . r a . a # . # a # # e r a . . . o . o . . . . s . # .

m a # . e . a s s . . 15

CERTIFICATE OF SERVICE .............aa..........#..a.o...a.....#...a 15

APPENDIX PAGE NO.

iState V. Eric Ryan Journal entry and opinionCase No. 98101 released and journalized on December 6, 2Qi2a###e...

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION.

This case is very complex and involves the conviction of a man that is innocent

of the crimes for which he is convicted. The appellant Eric Ryan,(herein known as

appel l ant ), had two mi stri al s for the charges that he is ctirrentl y convicted of

before the state finally got there conviction in the third trial.

The first trial ended in a Crim.R. 16 violation, the state failed to disclose

latent, exculpatory evidence to the appellants trial counsel.

The appellant's second trial began and after the state presented its evidence

and rested, defense counsel moved for an acquittal pursuant to Crim.R.29, which

the trial court denied. During deliberations the jury informed the trial court

that they could reach a unanimous verdict and the trial court declared a mistrial

on all counts tried to the jury. The trial court, however, found the appellant

guilty of having weapons while under disability with one and three year firearm

specifications.

In the appellant's third trial, because of the prosecutors relentless pursuit

of a conviction, the prosecutor ignored the evidence that points to another man

that is actually the real person that committed the crimes the appellant is

currently conv i cted of. There is no greater compel l i ng reason to review a case

for consti tuti onal errors then one i nvol vi ng the convi cti on of an innocent man.

Schulup v. Delo(1995), 593 U.S. 298.

The appellant is serving a prison sentence of twenty three years to life,

despite the constitutional mandate that he be protected from conviction "except

upon proof beyond a reasonable doubt of ecery fact necessary to constitute the

crime with which he is charged." Jackson v. Vir inia (1979j, 443 U.S. 307 at 316;

in re Winship (1970), 397 U.S. 358 at 364; State v. Jenks (1991), 61 Ohio St.3d

259.

-1-

The appellant has been deprived of his right to liberty without the Due Process

of Law which is guaranteed to him through the Fifth and i ourteenth Amendments to

the United States Consti tuti on and through Section 16, Arti c1 e 1, of the Ohio

Constitution0

"A doctrine establishing so fundamental a substantive constitutional standard,"

Due Process of Law rests on the central tenet that "' no person shall be made to

suffer the onus of a criminal conviction except upon sufficient proof-defined as

evidence necessary to convince a trier of fact beyond a reasonable doubt of the

existence of every elem-ent of the offense®" Jackson, supra at 316.

The appellants conviction was gained by the use of insufficient evidence and

this court should accept jurisdiction of this case to correct this deprivation of

l i berty without the protection of Due Process of Law, especi al l,y in i i ght of the

states relentless pursuit of this mans conviction.

The appellant's Due Process was further violated by the trial courts error in

denying appellants motion to suppress identification testimony. There are several

reasons why the photo array should not have been admissible and they will be

addressed in appellants Proposition of Law one. The bigger problem is that this

seems to be the common practice when it comes to investigation strategy that

condemns people to prison that are innocent of their crimes and are just victiMss

of an unduiy suggestive photo array.

The appellant was further denied his constitutional right to a fair trial

because the courts attitude was unreasonable, arbitrary and unconscionable because

it admitted the photo array over defense counsel's objection, aclcar abuse of

discretion. This court should accept jurisdiction of this case to ensure that the

appellants Due Process rights and his right to a fair trial were not trampled on

by the trial court because if this case does not get corrected by this court, the

pre trial investigation strategy of Ohio's police departments will continue to

p

-2-

place people in prison for crimes they did not dns

Yet another violation of appellant's right to a fair trial is the Prosecutorial

Misconduct committed during closing argnments. The State unduly prejudiced the

appel l ant by i mproperl ycommenti ng on facts stricken frora the record, then

repeatedly and improperly commenting on the credibility of the State's witnesses

and attacking the sincerity of defense counsels The statements made during

closing arguments in this case can be characterized as misconduct that deprived

the appellant of his constitutional right to a fair trial, the Eighth District

Court of Appeals was incorrect in their determination that the prosecutor's

closing argument in its entirety discloses no prejudice to any of the appellant's

substantial rights.

Thi scondnct by the prosecutor is also tied into the prosecutor's rel entl ess

pursuit of aconvictican against the appellanta The appellant feels that his 1999

conviction of Felonious Assault on a Police officer is the reason for the unduly,

suggestive photo array and why the prosecutor's office continued to try the case

after two mistrialsa The appellant thinks that the detectives and prosecutors

working his case felt that he did not do enough time for the 1999 crime and now

they can ensure that he will now.

' This court should seriously consider accepting this case because it posses a

constitutional question that is of great ptJblic interest. Furthermore, if any of

what the appel l ant thinks is true, no convi cti on should be allowed to stand when

the motivation behind the investigation and three trials was revenge on the part

of the state agencies4

-3-

STATEMENi' tlF THE CASE AND Fl1CTS

on April 8th, 200, the appellant sat in a police interrogation room and

requested a gunshot residue test. He asked for a lie detector and he denied

commi tti ng any crime after over an hour of intarroga ti cn4

In the interrogation, Detective Diaz of the Cleveland police department

insisted that the appellant shot and killed the victim Jacob Cody. A witness,

Lashelle Galdwell, described the shooter as a black manfl. 190 lbs., around 5' 1011,

and having a broken or mi ssi ng left front t®ctb. She i denti fi ed the appel l ant' s

picture in a photo lineup prepared by Diaz and personally shawn to her. Another

witness, Keven Shields, picked the appellant out one month afterwards. That would

be the total extent of the evidence that Detective Diaz or his partner Detective

Sowa would collect that linked the shooting to the appellant.

Utiri ng the i nterrcgati on the appel 1 ant left Diaz with a lead to another man,

Theodore Travis. He said "The4dcre Harris°" may have been a lead, and it turned

out that ten months after the ki 1 l ing, a man named Theodore ( Travi s) had the

murder weapon. The Weapon was used in a murder less than a week adter the ki 1 l ing

of Jacob Cody, while the appel l ant was in pQl i ce custody. Theodore travi s

resembled the appellant.^^r 1̂^_mm,

tf^ ^ tend^s^a s.,,.^,.^.^.

Both detectives would testify that they waited an ac^t^ e icd sia^̂.,sI.is e^^ r voe

even i ntervi ewi ^g Theodore Trav i s. Travis, although also adamantly denying

participation in the Cody murder, was not charged with a crime, and he gave the

names "Mati se" and "Wi 1 l i s" as persons who might have information on the Cody

shooting. The detectives tN^a'ti i d not i gicl ^ia"°ae i rav i s t p i»tvr^ i n a roew ph -otv array

for witnesses to vieW.

The gun that was used in the Cody shooting was not found on Travis, however.

It was 1 i nked by bal l i sti cs evidence to a ki l l ing a week from the Cody ki s l i ng.

-4-

it would be found a year l ater , on Publ i cSquare with a different man, Laquann

Davis. The man testified that he had the gun after a scuffle on the square. He

was accused of robbery by a homeless man and arrested. He did not know the origin

of the gun, and did not know the appellant.

The detectives on the case, failed to collect any physical evidence linking the

appellant to a robbery on Elk St. Diaz testified that the appellant was arrested

with a gun the day after the shooting, but it was a different gun than that was

used to kill Jacob Cody. It was a .38 caliber revolver.

Detectives would later discover that Cody was a known drug dealer, another

suggestion that was not followed up by detectives.

Of the physical evidence collected for presentation at trial, the appellant was

never connected to the shooting. Police collected the appellant's jacket, t-

shirt, shoes, and jeans on the day of his arrest. The sleeves of the jacket

tested negative for gunshot primer and residue. All staining tested negative for

blood related to the shooting. Ploice simply failed to test for DNA on the

following: a cell phone dropped at the crime scene; the vehicle Caldwell ran to;

The appellant's t-shirt; a set of keys and fob; and some evidence at Placard 5.

Police also did not test any DNA against other suspects' including Theodore

Travis, Matise, Willis, or Isaiah Good.

Isaiah Good would come up from fingerprint evidence found at the scene. Police

found a fingerprint on Marc Morris' phone. lt did not match any of the victims of

the crime, and did not match the appellant. Two latent fingerprints taken from a

vehicle nearby also did not match any of the victirr^s at the scene, and did not

match the appellant. However, it matched an Isaiah Good and a Ricardo Dean.

Just one day after the arrest of the appellant, Diaz pressed the appellant in

the interrogation, offering lenience, lying about identification evidence that was

-5-

available to detectives, acting tough so that he could get the appellant to admit

his guilt. He did this for over an hour. In the end, however, Detective Diaz's

entire case rested on the identification by two people, based on what they saw for

a split-second, in "&dim" lighting, at 9:30 at night.

The appellant has since maintained his innocence and continues to maintain his

innocence to this day.

The state of Ohio proceeded on an indictment from April ktst, 2010 against the

appellant, alleging Aggravated Murder in violation of R.C.2903.0t(B)a with felony

murder specification under R.CQ2929.04(A)(7), firearm specifications from

R.C.2929.141 and R.C.2929.145, notice of prior conviction, and repeat violent

offender specification under R.C.2941.149(A); one count of Aggravated Robbery in

violation of 2911.01(A)(3) with the same specifications; three counts of

Aggravated Robbery in violation of R.C.2911.01(A)(1) with the same specifications;

three counts of Kidnapping under R.Cffi2905.O1(R)(2) with the same specifications;

and Having a weapon Under Disability pursuant to R.C.2923.13(A)(2).

The first trial ended in a state Crim.R.16 violation, whereupon the trial court

granted defense counsel's oral motion for mistrial. The state failed to disclose

latent, exculpatory fingerprint evidence.

The second trial resulted in a hung jury. The trial Court declared a mistrial,

and then continued to a third trial.

The trial court held a suppression hearing to suppress identification evidence.

The trial court denied defense counsel's motion to suppress identification

evidence, including the photo array used at the third trial.

In the third trial the appellant was found guilty of all counts save for counts

7 and 9. Counts 2 and 3,4, and 5 merged for purposes of sentencing. At

sentencing the trial court imposed a sentence of 3 years on the remaining firearm

-6-

specifications, p1us 2€3 years to life for aggravated Murder.

ihe appellant filed his Merit Brief with the Eighth District Court of Appeals

on June 16, 2012 raising six assignments of error for that courts review.

4n December 6, 2012 the Eighth District court of Appeals issued a journal entry

and opi ni an affi rmi ng the trial courts rul i ng.

The appellant now ti mel y files hi sNoti ce of Appeal and Memorandum i nSupport

of Juri sdi cti on with thi s^^urt rai si eg the fol lowi eg pr°oposi ti ons of law for

review.

ARGUMENTS IN SUPPORT OF PROPOSITIONS OF LAW

Pro,posi tior^ of ,aw I: the trial court erred and abused its^is6reti ^ by eny^ appei l ant's Motion to suppress indenti fi cati oetestimony and by admi tti ng photo spreads over defense counselobjection, v i alati ng appel 1 ants right consti tuti ona1 right toDue Process and a fair trial.

A defendant's right to due process prohibits the use of identification

procedures that are so impermissibly suggestive as to give rise to a substantial

likelihood of misidentification. Weil v. Biggers (1972), 409 U.S. 188 at 198.

"[RIei i abi 1 ity is the l i nchpi n in determi ni ng the admi ssi bi 1 i ty of i denti fi dati+on

testimonv.°" Manson v. Brat.hwaite (1977), 432 U.S. 98 at 114. A trial court must

use a two-step analysis when considering whether to admit identification evidence.

First, the court must consider whether the procedure was impermissibly

suggestive. Secondly, the court must consider whether, despite the procedure's

suggestiveness, the i denti ficati on was rel i abl e.

"When as sess i ng the rel i abi 1 i ty of a pretrial i denti f icati on, the court must

consider the totality of the circumstances, including the following factors: the

opportunity of the witness to view the criminal at the time of the crime, the

-7-

witness's degree of attention, the accuracy of his or her prior description of the

criroinal, the level of certainty demonstrated at the identification, and the time

between the crime and the identification." Biggers, supra at 199.

"Any error alleged in the admission of evidence may only be shown by

establishing that the trial court abused its discretion." State v. flwens, 1999

Ohio 898, ci ti ng IKetaul l ics S stems Com ae L.P. v. Moltee Metal E i nt

tenoyati9ns, Inc. (1996), 110 Ohio App.3d 367 N.E.2d 418. "The term abuse of

di scretigr+ c®nnote.s more than 4n errer of law or judgment; it impi i es that the

court's attitude is unreasonable, arbitrary or unconscionable." Stete v. Adams

(1980), 62 Ohio St.2d 151 at 157.

Here, i denti fi cati ons from the photo array should not have been admi ssi bl e for

several reasons, first, the array was administered by Detective Diaz to both

identifying witnesses, Galdwell and Shields. Ohio law has changed to favor a

"double blind" administration method. See R.C. 2933.83. The double blind method

eliminates the possibility that, either consciously or subconsciously, the

administrator suggests the witness pick a particular person.

administered both tests and was the lead investigator on the case.

Detective Diaz

Galdwell A during cross-examination at the suppression hearing stated:

Q. Did you assume that the person they we^e looking fcr was in the ovbographs?

A. If they s W rna a lineup, yeah, I would assume that.(Tr.P. 655)

Shields was told by both detectives, "we think we got the person that shot

him," before he was shown the photo array.(Tr.P. 655).

Second, each and every one of the other candidates in the photo had an

ab jecti ve characteri sti c that el imi nated them from possi bl e selection in the

array, l eavi ng only the appel l ant as the only l ogi cal choice. The features that

eliminate each candidate from possible selection are best proved in reverse drder;

-8-

6. Teeth showing, has no missing front , left tooth.

5. No 1'1GiJ' - ch o

4. No hair on chin, visible tear-drop tattoos under right eye, mssive tattoo on neck.

2. No facial hair vhatsoever, looks like a .g boy.

This leaves a person vi ewi ng only number 3 and number 1, a 50% chance of

success, all things being equal, but sti l l the array is sti l l suggestive between

the two photos because the light shining on candidate Number I makes his face

visibly and significantly lighter than appellant's favoring both Calweil's and

shield's description of a dark skinned black man.(Tr.P. 618).

Third, the photo arrays given to both witnesses were identical to each other,

the appellant's position in the array was the same both times, as well as the

other candidates were identical and identically positioned. This is critical

because the faults in the first array carry over to the second, and the police

presented the array to Shields about a month after Caidwell's

identification.(Tr.P. 654). This gave both Shields and.Caldwell plenty of time to

talk to each other and the opportunity to learn where Caldwell's pick was on the

spread, and who to exactly pick if he could not i denti fy the correct person and to

ensure that both their stores matched up. 5hi el ds admitted to tal ki rag about the

shooting before looking at the photo array.(Tr.P. 655).

Fourth, both Caldwell and shields admitted to seeing the shooter for only a

fleeting moment, in the dark, and/or with an obstruction. Shields laid on the

ground, at night, when he claims to have seen the face of the shooter.(Tr.p. 647).

He was smothered by the body of another man at the time, Morris. "He cooldF+'t

see."(Tr.P. 647). Incredibly, he offered his testimony despite the fact that a

door had swung open into his face during the incident.(Tr.P. 647-648). Caidwell

also had impaired perception and amry that night. She stated that she looked at

-9-

the shooter only as he said something, directly before the shooting, in complete

contradiction to Shields' testimony, that the shooter said nothing at the time.

She stated she did this as he was holding a gun to her and starting the robbery.

in futher contradiction with the other witnesses, she remembers the robbers saying

nothing as they ieft. Then, calling into question her ability to truthfully

identify anyone, she ran from the scene after the shooting occurred, and after 911

was oalled.

Finally, the fifth point, the photos in the array contained men without

baseball caps on, with di fferi ng bai rl i nes. The weight of each man could not be

perceived in the photo array. This left witnesses to rely on their recollection

of the shooter's eyes, under a brim of a baseball cap, facial hair, skin color to

determine which man shot Jaoob Cody at 9, 30 pm, in dim l i gMti ng. Again, this left

both Caldwell and Shields with few options from which to pick the shooter, when

the both assumed that the shooter would be in the array.

The procedure did cause prejudice, as Caldwell admitted, and the photo spread

itself was unduly suggestive under Biggers. Considering the totality of the

circumstances, each factor weighs against the reliability of Caldwell's and

Shield's identifications.

pr o^tion of Law I ,^ A convi cti on absent proof beyond areasonabe^ub e^ery element of the offense chargeddeprives a defendant of his constitutional right to dueprocess of law. 3ackson v. Vir in^"a (1979), 443 U.S. 307E.F i ftb and Fo^artednth Rmen m-e-nTs to the United StatesConstitution, and Article I, Section 10, of the Ohio Constitution.

An accessed cannot be convicted "except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime which he is charged." In re Winship

(1970), 397 U.S. 358 at 364. When the state fails to present sufficient evidence

to prove all the elements of the offenses charged beyond a reasonable doubt, a

-10-

subsequent conviction violates due process. Tibbs v. Florida (1982), 457 U.S. 31;

3acksoo v. Virginia (1979), 443 U.S. 307. "In reviewing the record for

sufficiency, [tlhe 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. Smith (1997), 80 Ohio St.3d 89 at 113, citing State v. 3eaks (1991), 61 Ohio

St.3d 259, 574 N.E.2d 492 paragraph two of the syllabus, and 3ackson v. wirginia,

supra.

"Sufficiency" refers to t"Le legal standard "for reviewing a criminal conviction

on appeal, based on whether enough exists to justify the fact trier's finding of

guilt beyond a reasonable doubt." Black's Law dictionary (7th Ed. 1999), 1446-47.

whether the evidence is legally sufficient to sustain a verdict is a question of

law, and any conviction based on legally insufficient evidence constitutes a

denial of due process. Tibbs v. Florida 457 U.S. 31; 3ackson v. Yir°gnia- 443 U.S.

307.

The appellant incorporates all arguments regarding the suppression of the photo

array within. As stated in Proposition of Law 1, the photo identification of the

appellant were both tainted by procedural and substantive deficiencies that

prevente d a fair and accurate i denti t i cati cn, before and dur i ng trial.

A). EYEWITNESSES DID NOT PRODUCE RELIABLE Ii3ENTIFYCATIfiN TESTI14t3NY.

The trial produced testimony that differed frorft the suppression hearing. Kevin

Shields did not remember what description he gave of the shooter on the night in

questi cn, ( Tr.P. 2096), and he di dnot remember thetil -,r i t i nn, i t dc^n, and did not

remember them brcadcasti ng it.

In no other part of the trial is there a detailed description of the appellant

from the night of the shooting. A description from a police officer was stricken

from the ►ecor d, and Caldwl-ul1' s testimcny differed as we11. Cai dwell described

the shooter the day the shooting as `"slim, not skinny, but small, like medium

build."(Tr.P. 1987).-11-

Bj. EYEWIiRESS TESTIMONY SHOULD NOT BE AFFORDED SIGNIFICANT PROBATIVE VALUE.

The qtaal i ty of the State' swi tnesses should have been cri ti cal l,y questioned by

the jury because of their association with Cody and Morris. Mr.Cody was a known

drug dealer,(Tr.P. 2151), although, this angle was not explored by

deteetives.(Tr.P. 2159).

Cross examination revealed that Marc Morris was a fugitive from

Columbus.(Tr..P. 2050). The detectives had no idea at the time, to the point that

after questioning Morris was released. (Tr.P. 2160). At trial Detective Diaz

still did not know this fact.(Tr.P.2I60). Morris was been convicted of robbery

and drug trafficking.('1"r.P. 2035). He had escaped a halfway house before living in

Cleveland. (Tr.P.2050). Morris indicated that he was just "driving by" that day

to buy drugs from Cody. (Tr.P. 2040-43). It is very possible, that is the reason

both Caidwell and Morris fled the scene.(Tr.P. 2015, 2032).

C). PHYSICAL EVIDENCE POINTED AWAY FROM tHE APPELLANT.

There is no physical evidence that supports the conclusion that the appellant

was the shooter. the police collected the appellant's jacket, a t-shirt, shoes,

and jeans on the day of his arrest. The jacket tested negative for gunshot primer

and residue and all staining tested negative for blood related to this

incident.(Tr.P. 2257 and 2280).

Police simply failed to test for DNA on a cell phone dropped at the scene, the

vehicle Caldwell ran to, the appellant's t-shirt, a set of keys and fob, and

evidence at Placard 5. (fi r.P. 2284). The police also did not test any DNA against

other suspects, including Theodore Travis, Matise, Willis, or Isaiah Good.(Tr.P.

2287).

The pal i ce found a fi ngerpr1 nt on Murri s' phone. It di dnot match any vi cti l'as

or the appellant.(Tr.P. 2214). T'wo latent fingerprints taken from a car nearby

also did not match any vi cti ms or the appel l ant, but it matched i sai ah Good and

Ricardo Dean.(Tr.P. 2219).

-12-

They also failed to track the origin of the murder weapon. it was not found on

the appellant, it was found a year later, on Public Square, while the appellant

was i nja i l. The weapon was used in a murder less than awoek after the Cody

ki l i i ng, while the appei 1 ant was in pol i ce custody. A man named Theodore Travis

had the murder weapon and Travis resembled The appeliant.(Tr.P. 2179, 2180, 2184).

Considering the tainted identification testimony, and complete absence of

physical evidence, the state failed to prove beyond a reasonable doubt that the

appeliant committed the crime for which he was convicted.

Pr® ®sI ti nn af Law III : the s ta te committed prosec utor i altr^ cont uct ,y irnpr^aper commont during closing argument

denying the appellant his constitutional right to afair trial.

In evaluating a claim of procedural misconduct in closing argoments a[a court]

niust first determine whether the remarks were improper. State v. Smith (1984), 14

Ohio St.3d 13 at 14. If the remarks were improper, the reviewing court then

determines whether the remarks prejudicially affected the defendant's substantial

rights. Id. Where [a reviewing] court finds such misconduct, it may reverse the

decision of the lower court and vacate its sentence. Statev. Depew (1988), 38

Ohio St.3d 275 at 288.

Tk"' e'f ^ntr °r^°y^nr rhnrii`i ho vrin`i ^pr^wd in inverse rA1 at ion to thp9 ST'v v H A .g-mi» 6 V f any t'am c ais .,ssrc.vw. w vw -w*.w .

quantity and quality of the evidence of guilt. Where the evidence is less than

overwhelming, an appellate court should consider the cuffsulative effect of error as

increasingly prejudicial. PMle v. Connette (1984), 101 App. 2d 699; State v.

Vrona (1988), 47 Ohio Apr.sd 145; st^v Fan, (1978), 64 Ohio Ann. 2d 203.

A). THE PRt1SECUTION IMPROPERLY COMMENTED ON AND EMPHASIZED FACTS NOT IN EVIDENCE.

It is improper for tfiic prosecuting attorney to r►iislead the jury by either

misstating the law or the facts in closing arguments. Depew, supra at 288. Here,

the state referenced stricken testimony to support their argument of a timely

identification of the appellant. (Tr.P. 2428-29). The state then doubles-down on

on the description, its specificity, and especially its timing. (7r.P. 2429).

-13-

The court struck the dosori pti on from the record frorn direct ex,ami nati on of an

officer, and even pulled counsel from both sides to side-bar.(Tr.P. 1957). This

is a massive abuse of the state's leeway during closing argument, specially

referencing a fact stricken frorii the record.

8). THE PROSECUTION HIGHLIGHTED ANOTHER FACT NOT IN EVIDENCE.

The state oomrirented during oi osi ng, referencing State's Ex. 7i ,"thi s is the

tattoo she saw. This tattoo she showed you. This is the tattoo that was

questioned on cross examination." (T.r.P. 2407). The unfounded assertion that

Caiwoll "showed" the the tatto to the jury stems from the exchange during

oross.(Tr.P. 2012-13).

C). THE PROSECUTION REPEATEDLY AND IMPROPERLY COMMENTED ON THE CRCtDIBILITY OF THE

STATE'S WITNESSES AND COMM ENTED OF DEFENSE CflUNSEI.'S SINCERITY.

Here, the state gave each witness his personal approval by stating that they

"could not make up" their testimony, appellant's defense is "nonsense," and

Defense counsel acting improperly in presenting its defense.(Tr.P.2428-36).

The comments regarding "nonsense" and other attacks on defense coUnsel's

sincerity are certainly improper. To be sure, it is error for the prosecutor to

iatpote 9 nsi ncer i ty to defense counsel. Stat e v. Ke (1 g93),66 Uhi oSt. 3d 402

aat 4:.^:1. See also state ve awqson, 2011-Ohio-3623 at W.

Furtherniore, [a] prosecutor is not allowed to express a personal opinion

concerning the oredibility of evidence, but can argue that the character, quality,

or consistency of particular evidence or witnesses should be considered when

assessing credibility. Johnson, supra at 170.

The cumulative effect of the improper comments on evidence stricken from the

record, improper comments on witness credibility and comments on defense counsel's

sincerity should be deemed misconduct and accordingly this court should accept and

reverse and remand for a new trial.

-14-

CUNCLUSION

With the appellant, EriC RYan, going ^hroUgh three trials because of the

prosecutors relentless pursuit of acuntiic$idn, an innocent man $ias been convicted

of acritoe he did not commit. There is a very real possibi l ity that the actual

murder is still going unpunished because of the prosecutors and detectives

revengeful pursuit to see the appellant punished further for his past actions.

For the reasons discussed above, this case involves matters of public and

great general interest and a substantial constitutional question. The appellant

requests that thf scaurt accept ^uri sdi cti on in thisca.se so that the important

issues presented will be reviewed to ensure justice.

RespectfUlly submitted,

ric yan#A622-41JMansfield Correctional Inst.P.O. Box 788Mansfield, Ohio 44901

COUNSEL FOR APPELLANT

^;ERTWICATE OF SERVICE

I certify that a true copy of this MEMORANDUM IN SUPPORT OF JURISDICTION wassent by ordinary U.S. mail to counsel for appellee, Tirnothy J. McGinty, CuyahogaCounty Prosecutor, at the Justice Center, 1200 Ontario st., 9th floor, Cleveland,Ohio 44113 on thi s_LJday of ,2013.

rt c Ryan#A622-413

-15-

court of 1ppeatg; of Jjj ioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 98101

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

ERIC RYAN

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from thervuyaiioga Cvuilty Cour^ t3f vvinuivii Pieas

Case No. CR-536381

BEFORE: E. Gallagher, J., Jones, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: December 6, 2012

f

ATTORNEY FOR APPELLANT

Rick L. Ferrara2077 East 4th StreetSecond FloorCleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGintyC ayahoga County Prosecutor

By: John R. KoskoMelissa RileyAssistant County ProsecutorsThe Justice Center, 9th Floor1200 Ontario StreetCleveland, Ohio 44113

FILE'D AND JO(;,.^P,;(ALiUDMPR A PP. R, 22(C)

DECOf29;1Z

EILEEN A. GALLAGHER, J.:

{¶1} Eric Ryan appeals his conviction and sentence entered in the

Cuyahoga County Court of Common Pleas. Ryan argues the trial court erred

in failing to suppress identification testimony and, in adxn itting a photo array,

that the state presented insufficient evidence and committed prosecutorial

misconduct during closing argument, that his conviction was against the

manifest weight of the evidence and that his sentence is contrary to law.

Finding no merit to the instant appeal, we affirm Ryan's conviction and

sentence.

{¶2} This case arises out of a shooting that occurred in the evening hours

of April 6, 2010, in front of an apartment building located at 10322 East 105th

Street in Cleveland, Ohio. On that night, Lashell Caldwell, Jacob Cody, Kevin

Shields and Mark Morris were sitting on the stoop outside of the apartment

building. Caldwell and Shields were residents of the apartment building and

Cody and Mark were friends of Shields and were visiting that night. Caldwell

and Cody were seated to the left of the front entrance, with Cody seated closest

to the apartment entrance. Shields and Morris were seated to the right of the

front entrance. Caldwell later testified that the area was well lit, with two

lights above the apartment building entrance and a streetlight across the street.

{¶3} As the four individuals were sitting outside, Ryan and an unknown

male approached from East 103rd Street. When Ryan was in front of the group,

he pulled out a semiautomatic handgun from his waistband, pointed the gun in

their direction and stated, "this is how I do it." Caldwell stated that Ryan was

fairly close to her face and she stated that when he spoke, she saw that he was

missing his left, front tooth.

{¶4} Cody stood and attempted to run inside the apartment building. As

he fled into the building, Ryan fired two shots at Cody and then walked back to

the group. Caldwell stated that the first shot was fired directly in front of her,

that Cody made it inside the apartment building but Ryan followed him in,

firing a second shot. Shields stated that as Ryan shot Cody, the unidentified

male took Morris' watch and shorts. Shields stated that before they left the

crime scene, Ryan stated "we don't play no games." The two men then left the

area.

{¶5} Both Shields and Caldwell described Ryan as missing his front, left

tooth and that he was a dark-skinned black male, approximately 5'10" and 190

pounds.

{¶6} Police, officers and EMS technicians arrived on the scene. They

found Cody lying on his back inside the doorway of the apartment building.

EMS transported Cody to Huron Road Hospital, where he was pronounced

dead. Police officers took statements from the remaining witnesses and later,

prepared a photo array, which included Eric Ryan, a man that matched the

description given by Shields and Caldwell. Both Shields and Caldwell picked

Ryan from the array as the shooter.

{¶ 7} A Cuyahoga County Grand Jury indicted Ryan on the following

charges: one count of aggravated murder with felony murder, notice of prior

conviction, repeat violent offender and one- and three-year firearm specifications,

five counts of aggravated robbery with notice of prior conviction, repeat violent

offender and one- and three-year firearm specifications; three counts of kidnapping

with notice of prior conviction, repeat violent offender and one- and three-year

firearm specifications and one count of having weapons under disability with one-

and three-year firearm specifications.

{¶ 8} The state dismissed the felony-murder specification prior to the

commencement of trial. Ryan elected to have Count 10, the charge of having

weapons under disability and the notice of prior conviction and repeat violent

offender specifications tried to the bench. In the midst of trial, defense counsel

moved for a mistrial, over the state's objection, and the trial court granted that

motion.

{¶9} Prior to the start of a second trial, defen.se.counsel anoved to suppress

any evidence identifying Ryan as Cody's killer. In his motion, Ryan sought to

suppress the admission of a photo array, in which his photo appeared, as well as

the testimonial evidence of Lashell Caldwell and Kevin Shields. After conducting

a hearing, the trial court denied Ryan's motion.

{¶ 10) Ryan's second trial began. After the state presented its evidence

and rested, defense counsel moved for an acquittal pursuant to Crim.R. 29,

which the trial court denied. During deliberations, the ju-ry informed the trial

court that they could not reach a unanimous verdict and the trial court declared

a mistrial-on all counts tried to the jury. The trial court, however, found Ryan

guilty of having weapons while under disability with one- and three-year

firearm specifications.

{¶ 11} Ryan's third trial began and Ryan elected to try the notice of prior

conviction and repeat violent offender specifications to the court. The state

presented the testimony of Lashell Caldwell, Marc Morris and Kevin Shields,

who were all present when Cody was shot and each of whom identified Ryan as

the individual who shot Cody. The state also presented the testimony of the

medical examiner, the detectives who investigated- the case, the responding

officers and the investigators who processed and examined the fingerprints,

blood and other evidence collected in the case.

{¶12} The defense rested without presenting the testimony of any

witnesses. However, through its cross-examination of the state's witnesses, the

defense alluded to the following: that Cody was a drug dealer, that Ryan

proclaimed his innocence from the first interview with police officers, even

offering a DNA sample and to take a polygraph examination and that police

officers failed to investigate information pointing to suspects other than Ryan.

{¶ 13} Ryan was found guilty of agg-r-avated murder with one- and three-

year firearm specification (Count 1), three counts of aggravated robbery with

one- and three-year firearm specifications (Counts 2, 3 and 5) and three counts

of kidnapping with one- and three-year firearm specifications (Counts 4, 6 and

8). The jury found Ryan not guilty of two counts of aggravated robbery (Counts

7 and 9). The court found Ryan guilty of the notice of prior conviction and

repeat violent offender specifications for all charges in which the jury found

Ryan guilty.

{¶14} The trial court immediately proceeded to sentencing. The court

merged Counts 2'and 3, (the two charges of aggravated robbery where Cody

was the victim) and Counts 4 and 5, (the charges of kidnapping and aggravated

robbery where Marc Morris was the victim), as well as all firearm specifications.

The state elected to proceed on Counts 2 and 5, both charges of aggravated

robbery, for purposes of sentencing. However, because of a procedural error, the

trial court was ordered to correct the sentencing journal entry. The trial court's

corrected entry sentenced Ryan to a total prison term of 23 years to life.

Specifically, the court sentenced Ryan as follows: 20 years on the charge of

aggravated murder (Count 1) to be served prior to and consecutive with the

tb.ree-year sentence for the merged firearm specifications, ten years on the two

charges of aggravated robbery (Counts 2 and 5) and the two counts of

kidnapping (Counts 6 and 8), to be served concurrent to each other and to the

charge on Count 1 and two years on the charge of having weapons while under

disability (Count 10) to be served concurrent to the other charges.

{¶ 15} As related to Count 10, the court ordered the sentence for the three-

year firearm specification to run consecutive to the seven-year sentence imposed

in case CR-536369. The court then ordered the prison sentence for case CR-

536369 to run concurrent with the present case for an aggregate prison

sentence for both cases of 23 years to life.

{¶ 16} Ryan appeals, asserting six assignments of error for our review.

Assignment of Error I

The trial court erred in denying Appellant's motion to suppressidentification testimony.

Assignment of Error II

The trial court abused its discretion by admitting photo spreadsover defense counsel objection.

Assignment of Error III

The manifest weight of the evidence did not support Appellant'scnrt vi ct:i nn s,

Assignment of Error IV

The state presented insufficient evidence to support Appellant'sconvictions.

s

Assignment of Error V

The trial court acted contrary to law when it imposed consecutivesentences without authority to do so under the Ohio Revised Code.

Assignment of Error VI

The state committed prosecutorial misconduct by impropercomment during closing argument.

{¶ 17} In Ryan's first and second assignments of error, l he argues that the

photo array that was shown to Caldwell and Shields to identify Cody's shooter

was unduly suggestive and that it was error for the court to admit the

identification testimony of both Caidwell and Shields, as well as admit the

photo array itself, into evidence. We disagree.

{¶18} A reviewing court is bound to accept the trial court's findings of

fact in ruling on a motion to suppress if the findings are supported by

competent, credible evidence. State v. Page, 8th Dist. No. 84341, 2005-Ohio-

1493; State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist:1991).

{¶ 19} With regards to a motion to suppress a photographic identification

procedure, the defendant bears the initial burden of esta'r^lishing that the

photographic identification procedure was unnecessarily suggestive. Page;

State v. Howell, 8th Dist. No. 91569, 2009-Ohio-3092. If the defendant meets

this burden, the court must determine whether the photographic identification

'These assignments of error involve analysis of the same facts; as such, theyshall be addressed contemporaneously. I

procedure was "so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification." Simmons v. United States, 390 U.S.

377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Howell; Page.

{¶20} The Supreme Court instructs courts to consider the following

factors with regard to potential misidentification:

the opportunity of the witness to view the criminal at the time ofthe crime, the witness' degree of attention, the accuracy of thewitness' prior description of the criminal, the level of certaintydemonstrated by the witness at the confrontation, and the lengthtof time between the crime and the confrontation ***." Neil v.Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Page. Even ifthe identification procedure contained notable defects, this factordoes not, per se, prevent the admissibility of the identification.

State v. Merrill, 22 Ohio App.3d 119, 489 N.E.2d 1057 (8th Dist.1984); Page;Howell.

{¶21} In this case, the photo array consisted of six photos. Ryan contends

the array was unnecessarily suggestive, and believes that his picture stands out

from the rest, because of the following: the suspect in photo number 6 displayed

his teeth, showing no missing left, front tooth, the suspect in photo number 5

did not haVe a mustache, the suspect in photo number 4 had no hair on his chin

and had visible tattoos on his neck and face; and the suspect in photo number

2 had no facial hair whatsoever. Additionally, Ryan claims that the lighting on

his photo and the suspect in photo number 1 makes it appear that he has

darker skin. Thus, Ryan argues that by a process of elimination, no other

candidate other than him could be selected. For the reasons that follow, we

disagree.

{1[22} Lashell Caldwell testified that on the night -of April 6, 2010, she

was sitting on the front stoop of her apartment building with Cody, Shields and

Morris. She testified that the area was well lit, with two lights above the

apartment building entrance and a streetlight across the street. Caldwell

stated that as they were sitting outside, Ryan and an unknown male

approached the group, pointed a gun at the group and said "this is how I do it."

Caldwell stated that Cody attempted to run away from the gunman but that

Ryan shot him, right in front of her face. Caldwell stated that she also saw

Ryan follow Cody to the apartment's entrance where he shot Cody a second

time. Caldwell was clear that she had ample opportunity to observe Ryan as he

shot Cody. Additionally, Caldwell stated that Ryan had a unique identifying

characteristic in that he was missing his front, left tooth.

{¶23} After describing the assailant to police officers the day after the

shooting, Caldwell identified Ryan from the photo array. Caldwell testified that

the officers did not tell her whom to a.dc^ntify and that she identified Ryan from

her recollection.

{¶24} Kevin Shields also identified Ryan from the photo array. Shields

testified that on the night of April 6, 2010, he was sitting outside an apartment

building with friends when Ryan and an unidentified male approached. Shields

stated that after Ryan fired his handgun two times, he walked back in front of

the group and said "we ain't playing no games." Shields stated that he knew

Ryan was the one who fired the handgun because the other male was robbing

Morris of his shorts and watch. Shields stated that he had a good opportunity

to observe Ryan and that he could clearly see that he was missing his left, front

tooth. Shields testified that he had no problem identifying Ryan as the shooter

and that the officers did not tell him whom to identify.

{¶25} Based on this testimony, we find that both Caldwell and Shields

had ample time to view the assailant, that both witnesses were highly attentive

to Ryan at the time of the crime and that both witnesses accurately described

Ryan. Further, we have reviewed the photo array and do not find it

unnecessarily suggestive. Each of the individuals had some unique

characteristics but all shared similar features. The fact that some of the

suspects had less or more facial hair than Ryan or that one of the suspects had

visible tattoos and Ryan did not, is not impermissibly suggestive. This is

particularly true when neither Caldwell nor Shields identified Ryan based on

his facial hair or lack of facial tattoos. Additionally, the fact that the suspect

in photo number 6 displays his teeth is also not unduly suggestive. Both

Caldwell and Shields testified that they identified Ryan from the photo array

based on their recollections of the crimes, not through a process of elimination

based on who was missing teeth. Moreover, we find Ryan's arguments

concerning the lighting of the photographs in the array to be without merit.

{¶26} Under these circumstances, we find that the photo array was not

"unnecessarily suggestive" and the victims' identification of Ryan was reliable.

Accordingly, the trial court did not err in denying Ryan's motion to suppress.

{¶27} Further, we find that the trial court did not err in admitting the

photo array into evidence. A trial court has broad discretion in determining the

admissibility of evidence. Evid.R. 104. Absent an abuse of that discretion, this

court will not overturn the trial court's decision. State U. Owens, 3d Dist. No

1-99-42, 1999-Ohio-898.

{¶28} Ryan incorporated all the arguments he made in the first

assignment of error in support of his argument that the trial court erred in

admitting the photo array into evidence. We have already determined that the

photo array was not unnecessarily suggestive or inherently prejudicial and that

Caldwell's and Shields' identifications of Ryan as the shooter were reliable.

Accordingly, we find no error with the court's admission.

{¶29} Ryan's first and second assignments of error are overruled.

{¶30} Altb:ough Ryan's third and fourth^ assign:nients of error involve '

different standards of review, we will consider them together because we find

the evidence in the record applies equally to both.

{¶ 31} The standard of review with regard to the sufficiency of the

evidence is set forth in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184

(1978), as follows:

Pursuant to Crim.R. 29(A), a court shall not order an entry ofjudgment of acquittal if the evidence is such that reasonable mindscan reach different conclusions as to whether each materialelement of a crime has been proved beyond a reasonable doubt.

{¶32} Bridgeman must be interpreted in light of the sufficiency test

outlined in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus, in which the Ohio Supreme Court held:

An appellate court's function when reviewing the sufficiency of theevidence to support a criminal conviction is to examine the evidencesubmitted at trial to determine whether such evidence, if believed,would convince the average mind of the defendant's guilt beyond areasonable doubt. The relevant inquiry is whether, after viewingthe evidence in a light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of thecrime proven beyond a reasonable doubt." (Citation omitted.)

{¶33} In evaluating a challenge based on manifest weight of the

evidence, a court sits as the 13th juror, and intrudes its judgment into

proceedings that it finds to be fatally flawed through misrepresentation or

misapplication of the evidence by a jury that has "lost its way." State v.

Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio

Supreme Court declared:

Weight of the evidence concerns "the inclination of' the greateramount of credible evidence, offered in a trial, to support one sideof the issue rather than the other. It indicates clearly to the jurythat the party having the burden of proof will be entitled to theirverdict, if, on weighing the evidence in their minds, they shall findthe greater amount of credible evidence sustains the issue which isto be established before them. Weight is not a question ofmathematics, but depends on its effect in inducing belief."

* * * The court, reviewing the entire record, weighs the evidenceand all reasonable inferences, considers the credibility of witnessesand determines whether in resolving conflicts in the evidence, thejury clearly lost its way and created such a manifest miscarriage ofjustice that the conviction must be reversed and a new trialordered. The discretionary power to grant a new trial should beexercised only in the exceptional case in which the evidence weighsheavily against the conviction." (Internal citations omitted.) Id. at387.

{¶34} This court is mindful that weight of the evidence and the credibility

of witnesses are primarily for the trier of fact and a reviewing court must not

reverse a verdict where the trier of fact could reasonably conclude from

substantial evidence that the state has proven the offense beyond a reasonable

doubt. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at

paragraphs one and two of the syllabus. The goal of the reviewing court is to

determine whether a new trial is mandated. A reviewing court should only

grant a new trial in the "exceptional case in which the evidence weighs heavily

against a conviction." (Internal citation omitted.) State v. Lindsey, 87 Ohio

St.3d 479, 2000-Ohio-465, 721 N.E.2d 995.

(¶35) In the present case, the jury found Ryan guilty of one count of

aggravated murder with one- and three-year firearm specifications, three

counts of aggravated robbery with one- and three-year firearm specifications

and three counts of kidnapping with one- and three-year firearm specifications.

Additionally, the trial court found Ryan guilty of notice of prior conviction and

repeat violent offender specifications for each of the above counts as well as one

count of having weapons under disability with one- and three-year firearm

specifications. Nonetheless, in his assignment of error regarding the sufficiency,

of the evidence, Ryan fails to identify the crimes for which the state presented

insufficient evidence. Instead, Ryan makes a generalized argument that the

state failed to produce legally sufficient identification evidence to prove Ryan

committed the crimes.

{¶36} Our analysis of Ryan's first and second assignments of error

disposed of any claim of invalid identification testimony. Specifically, we noted

that Caldwell and Shields identified Ryan from a valid photo array and that

their identifications of Ryan were reliable. Viewing the evidence in the light

most favorable to the State, we conclude that the State presented sufficient

evidence to identify Ryan as the person that committed the above-cited crimes.

{¶37} We further find that the trier of fact did not lose its way in

convicting Ryan as indicted.

{¶38} In support of his claim that his convictions were against the

manifest weight of the evidence, Ryan argues that neither Caldwell nor Shields

produced reliable identification testimony and that their associations with

Cody, whom they allege to be a known drug dealer, makes their testimony

suspect. Additionally, Ryan argues that the physical evidence did not support

the conclusion that Ryan was the shooter. We find no merit to Ryan's

arguments.

p

{¶39} We have previously concluded that Caldwell and Shields provided

reliable identifications of Ryan as the shooter. Additionally, this court

concluded that the photo array presented to Caldwell and Shields was not

impermissibly suggestive. Ryan's claim that the testimony of Caldwell, Shields

and Morris should not have been afforded significant probative value, is

erroneous. The. fact that Caldwell, Shields and Morris spent time with Cody,

whom the defense allege was a "known drug dealer" was an issue of credibility

for the jury to consider. Clearly, the jury observed each witness and found their

testimony to be credible.

{¶40} Lastly, Ryan's argument that the lack of physical evidence tying

him to the robbery, murder and kidnapping clearly shows a lack of guilt is also

misplaced. While the state presented testimony that the fingerprint evidence,

blood evidence and gunshot residue evidence did not directly implicate Ryan.

{¶41} .The trier of fact is in the best position to weigh the evidence and

the credibility of witnesses. Although Ryan wishes the outcome had been

different, the jury observed each witness, heard the testimony and evidence and

ultimately concluded that he was guilty. As the reviewing court, we find that

the trier of fact could reasonabiy conciucie from the substantial evidence

presented by the state, that the state has proven the offenses. beyond a

reasonable doubt. Accordingly, we cannot say that the trier of fact lost its way

and created such a manifest miscarriage of justice that the convictions must be

reversed and a new trial ordered.

{¶42) Ryan's third and fourth assignments of error are overruled.

{¶43) In Ryan's fifth assignment of error, he argues that the trial court

lacked the authority to sentence him to consecutive prison sentences because

of an apparent irregularity with House Bill 86, the revised sentencing portion

of the Ohio Revised Code.

{¶44} Ryan raised this identical argument in a previous appeal. See State

v. Ryan, 8th Dist. No. 98005, 2012-Ohio-5070. Having fully considered Ryan's

claims and supporting case law, this court overruled his argument and upheld

the imposed sentence. Id. Finding no reason to divert from this authority, we

overrule Ryan's fifth assigned error and uphold the imposed sentence. See

Ryan.

{¶45} In his sixth and final assignment of error, Ryan argues the state

committed prosecutorial misconduct during its closing arguments in three

separate instances: (1) by stating that a description of the shooter was provided

to police on the night of the shooting; (2) by commenting on Caldwell's

testimony describing Ryan's tattoo and (3) by giving personal approval of its

own witnesses.

{¶46} In State v. Bruce, 8th Dist. No. 70982, 1997 Ohio App. LEXIS 4334

(Sept. 25, 1997), this court outlined the standard of review with regard to claims

of prosecutorial misconduct.

h

Generally, conduct of a prosecuting attorney at trial shall not begrounds for reversal unless the conduct deprives the defendant ofa fair trial. An appellant is entitled to a new trial only when aprosecutor asks improper questions or makes improper remarksand those questions or remarks substantially prejudiced appellant.In analyzing whether an appellant was deprived of a fair trial, anappellate court must determine whether, absent the improperquestions or remarks, the jury would have found the appellantguilty. The touchstone of due process analysis in cases of allegedprosecutorial misconduct is the fairness of the trial, not theculpability of the prosecutor. In addition, should a defendant failto object to the prosecutor's allegedly improper comments at trialpursuant to Crim.R. 52(B), the comments in question must rise tothe level of plain error aff'ecting the substantial rights of thedefendant before this court can take notice of the error. Under aplain error analysis, reversal of a conviction is appropriate only ifit can be said that, but for the alleged error, the result of the trialwould clearly have been different. (Internal citations omitted.)

{¶47} Notwithstanding Ryan's contentions, this court does not find that

the prosecutor's statements during closing argument can be characterized as

misconduct that deprived him of his constitutional right to a fair trial. As a

general rule, a prosecutor is entitled to a certain degree of latitude during

closing argument. Bruce, State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523

(1988); Moreover, as stated by this court in Bruce, closing arguments must be

viewed in their entirety to determine whether the disputed remarks were

prejudicial. Id.

{¶48} In this case, our review of the prosecutor's closing argument in its

entirety discloses no prejudice to any of Ryan's substantial rights. While the

prosecutor misstated when police officers received a description of the shooter

(the day after the shooting, not the night of), the prosecutor was not incorrect

in stating that three eyewitnesses to the murder described an individual

matching Ryan's description. Additionally, we find the prosecutor's reference

to Caldwell's testimony that the shooter had a tattoo on his arm to be

inconsequential. It is not error for the prosecutor to argue what he believes the

evidence has shown and the reasonable inferences that can be drawn therefrom.

Id.; State v. Richey, 64 Ohio St. 3d 353, 362, 595 N.E.2d 915 (1992). The

prosecutor was simply identifying to the jury another supporting piece of

identification testimony.

{¶49} Lastly, Ryan's claim that the prosecutor gave personal approval to

its eyewitness testimony is unfounded. Ryan's assigned error takes several

statements out of context during the prosecutor's closing argument. However,

a complete review of the argument and the State's theory of the case is that

Caldwell, Shields and Morris gave a description of the shooter and that

description matched Ryan.

{¶50} Based on the foregoing, we decline to find prosecutorial misconduct

in the present case. Ryan's sixth and final assignment of error is overruled.

{¶51} The judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rulps of Appellate Procedure.

EN A. VALLAff,HER, JUDGE

LARRY A. JONES, SR., P.J., andCOLLEEN CONWAY COONEY, J., CONCUR

page 1page 2page 3page 4page 5page 6page 7page 8page 9page 10page 11page 12page 13page 14page 15page 16page 17page 18page 19page 20page 21page 22page 23page 24page 25page 26page 27page 28page 29page 30page 31page 32page 33page 34page 35page 36page 37page 38