COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70769 CITY OF PARMA HEIGHTS : : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM DINGMAN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 1, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Parma Municipal Court, : Case No. 96-TRC-2462 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Andrew Lukcso, Esq. S. Michael Lear, Esq. Prosecutor, City of Parma Zukerman & Daiker Co., L.P.A. Heights 2000 East 9th St. Suite 700 6281 Pearl Road Cleveland, Ohio 44115 Parma Heights, Ohio 44130 -2- ROCCO, J.: Defendant-appellant William Dingman appeals from his convictions for driving under the influence of alcohol, driving under suspension, and driving outside of marked lanes of travel. Appellant asserts the trial court erred in its admission of certain evidence, in one of its instructions to the jury, and in its denial of his motions for acquittal. Appellant also asserts he was denied his right to a fair trial due to comments made by the prosecutor during closing argument. Finally, appellant contends the jury's verdict was against the manifest weight of the evidence. T h i s court has reviewed the record and finds appellant's assertions unsupportable; therefore, his convictions are affirmed. Appellant's convictions stem from an incident which occurred at approximately 12:30 a.m. on Sunday, March 17, 1996. At that time, Officer Bernie Walls of the Parma Heights Police Department was in his cruiser traveling southbound on West 130th Street. Walls had been assigned to a special DUI detail; therefore, he was specifically looking for drivers who appeared to be under the influence of alcohol. As Walls approached the Big Creek Parkway intersection, he noticed a black car approximately 100 yards ahead of him stopped at 1 the light. The car was "straddling" the left-turn lane and the through-traffic lane. As Walls continued to approach, the light turned green. He saw the car proceed forward into "a wide sweeping 1 Quotes indicate testimony given by a witness at appellant's trial. -3- left turn" which caused it to almost miss the parkway; the car had to "come back to go eastbound" on that road. Walls decided to follow the car. As he drove behind it, he could see two persons in the car. Walls noticed too that the vehicle was traveling "off on the right side of the road driving with its wheels over the white line which marked the lane of travel." Approximately 500 feet further, when the car came to the first side street, which was Lawnwood Avenue, "it made another wide right-hand turn." The car proceeded to the first driveway on the left, entered it and then stopped. Walls also turned onto Lawnwood Avenue. He continued to watch the car as he drove slowly. Walls was within 25 feet of the car when he saw the door on the driver's side open and the interior dome light illuminate the inside of the car. Walls saw a man, later identified as appellant, sitting behind the steering wheel; the man turned his head back and looked at the police car. The illumination from the car's interior light enabled Walls to clearly observe the face of the driver. Walls continued for a short distance past the driveway in which the vehicle had stopped before turning his car around in another driveway, switching off his headlights, and proceeding back. As he again approached the black car now from the opposite direction, he noticed both of the doors of the car were open. He saw "movement around the front of the vehicle" but could not determine what was occurring. Before he came to the driveway, both doors of the vehicle closed, the car reversed into the street, and -4- then proceeded back to Big Creek Parkway. The car turned right at the intersection and again traveled eastbound on the parkway. Walls continued to follow. He now observed the vehicle continuously "weaving back and forth" in a dramatic fashion. Walls watched it travel in this manner for approximately a mile. The car reached the Stumph Road intersection, stopped at the light, then turned onto Stumph Road. Walls decided to stop the vehicle at that point, so he activated his lights; he used his police radio to state his location. Another police car was in close proximity; thus, when Walls was exiting his cruiser, Officer Steven Greene drove his cruiser up directly behind. The two officers then approached the black car together. As Walls neared the driver's side, he saw there was now a woman behind the wheel. He mentioned this observation to his colleague. Officer Green went to the passenger side of the vehicle. He asked the man sitting there inside, viz., appellant, for some identification. As appellant complied, Green noticed appellant's eyes were "bloodshot," his response to Greene's request seemed "delayed," and there was "an odor of an alcoholic beverage coming from his breath." Green asked appellant to remain where he was while Green checked on appellant's driver's license. Walls by this time had asked the woman, later identified as Diane Power, appellant's girlfriend, to step away from the car. Walls proceeded to administer several field sobriety tests to Ms. Power, who performed them very poorly. As a result, Walls arrested -5- Ms. Power for driving under the influence of alcohol (DUI) and placed her in his cruiser. In the meantime, Green had obtained information that appellant's license was no longer valid. Greene returned to the black car with Walls. He asked appellant to exit the vehicle and to perform some field sobriety tests. The first test appellant was asked to perform was the horizontal gaze nystagmus. Greene, with Walls close beside him, checked for the three separate cues in each of appellant's eyes that would indicate appellant's nystagmus reaction had been affected by alcohol. As appellant performed the test, both officers observed all six cues. Green next asked appellant to perform the one-leg stand. While Greene was giving instructions, he noticed appellant "swaying from side to side." Appellant continued to sway as he attempted to perform the test; appellant's counting was erratic and he quickly replaced his foot on the ground. Greene also requested appellant to perform the walk and turn test. Greene pointed to the edges of the sidewalk and instructed appellant to walk in a parallel line. As he was explaining the test, Greene again noticed appellant was swaying. When appellant actually performed the test, appellant "didn't touch heel-to-toe *** throughout the entire test;" moreover, at the turn, appellant ignored the instructions he had been given and simply "pivoted." At this point, appellant would not agree to perform any more tests. Since both officers opined appellant had failed the three already -6- administered, appellant was arrested for DUI. Greene placed appellant in his cruiser. Another police cruiser had arrived at the scene by this time. Officer Ricky Brown joined Walls at Walls' vehicle. Brown heard Walls tell Ms. Power her Miranda rights. Thereafter, Ms. Power stated appellant had originally been driving her car because "he was less drunk." Later, neither appellant nor Ms. Power agreed to take a breathalyzer test. Appellant was subsequently issued three citations, viz., 1) DUI in violation of R.C. 4511.19(A)(1); 2) driving under suspension ("DUS") in violation of R.C. 4507.02 (B)(1); and 3) improper lane usage by driving outside marked lanes of travel ("DOML") in violation of R.C. 4511.33. Appellant's case proceeded to a jury trial. Prior to its commencement, appellant filed a motion in limine. Appellant requested the trial court to prohibit the city prosecutor from introducing any evidence relative to, inter alia, the possible concentration of alcohol in appellant's blood based upon the results of any field sobriety test. The record reflects the trial court granted appellant's motion. At trial, the city prosecutor first presented the testimony of Officer Walls. During cross-examination, appellant told Walls to read specific portions of his officer's field sobriety testing manual. These portions indicated the subject's probable blood alcohol concentration ("BAC") if the subject failed field sobriety tests. -7- The city prosecutor next presented the testimony of Officer Greene. At one point during his direct examination, Greene explained the meaning of a .10 BAC level and stated a subject who tested at that level "is presumed to be under the influence of alcohol." Appellant moved to strike the testimony and also moved for a mistrial. The trial court denied both motions. After the city prosecutor introduced into evidence a certified copy of appellant's driver's license record from the Ohio Bureau of Motor Vehicles, appellant presented his defense. Diane Power testified as follows: 1) she and appellant had spent the evening of March 16, 1996 on West 130th Street at her friend Sharon Cerny's house; 2) after several hours of drinking, "I guess I felt I was okay to drive;" 3) she began feeling ill on the way to appellant's house so "I don't know if it was the first or second street, I had pulled into the right and then the first or second house" off the road; 4) as she fought nausea, appellant exited the car to come to her aid; 5) when she felt well enough she "went ahead;" and 6) "the next thing I knew we were at Stumph Road" and the police "had pulled me over." Ms. Power also testified there were "a lot of parts I didn't remember of the evening." Sharon Cerny, a friend of both appellant and Diane Power, testified that on the evening of March 16, 1996, Power drove to her house at approximately 8:00 p.m. Cerny further stated that soon thereafter, she drove Power's car to pick up appellant with Power accompanying her. -8- Cerny testified that during the ensuing evening, both Power and appellant consumed beer, and they left her house together sometime after midnight. She stated she escorted them to her back door, watched them walk on her unlit driveway to Power's car, saw Power enter the driver's side and appellant get "halfway" into the passenger's side, then shut her back door for the night. She further stated she heard "the two doors slam" and Power's car start before she left the vicinity of her back door. Subsequently, the jury found appellant guilty of all three charges against him. The trial court sentenced appellant 2 accordingly. Appellant has filed a timely appeal from his convictions. He presents five assignments of error for this court's review, which will be addressed in logical order. Appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE PREJUDICE OF APPELLANT BY PERMITTING OFFICER GREENE TO TESTIFY, OVER OBJECTION, THAT IN HIS OPINION HAD APPELLANT TAKEN A BREATH TEST HE WOULD HAVE TESTED OVER 0.10 AND THAT A PERSON WHO TESTS OVER 0.10 IS PRESUMED TO BE UNDER THE INFLUENCE AND THE TRIAL COURT ERRED BY DENYING APPELLANT'S SUBSEQUENT MOTIONS TO STRIKE AND FOR MISTRIAL IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. 2 Execution of appellant's sentences has been stayed in part by this court pending disposition of this appeal. -9- Although the trial court granted appellant's motion in limine, at trial, during his cross-examination of Walls, appellant asked the witness to read portions of his officers' sobriety field testing manual. Each of these portions specifically concerned the likely blood alcohol content ("BAC") of a subject should the subject fail the three tests that appellant had taken. Appellant thus invited the prosecution's response to the introduction of this testimony. Later, appellant declined the trial court's offer of a curative instruction with regard to the testimony. Appellant now asserts not only that the trial court should have limited any further testimony on the subject, but that its failure to do so compromised the integrity of the jury's verdict on the DUI charge. On direct examination, Greene, the officer who had actually administered the tests to appellant, stated: Q. All right. Now, officer, based on your experience, your training, the field sobriety tests and your investigation at the scene, did you form an opinion as to whether Mr. Dingman was under the influence of alcohol? A. Yes, I did. * * * Q. Continue with your opinion, please. A. If given a breath test [he] would blow over 0.10. Q. What do you base that on, Officer? A. Based on my observation of the fact that he had been consuming alcohol, the odor on his breath, the bloodshot eyes, the slowness in response to simple questions, his performance on the three field sobriety tests. -10- Q. And do you have an opinion as to whether he was under the influence of alcohol? A. Yes, I Do. Q. And was he under the influence of alcohol? MR. LEAR: [appellant's counsel] Objection. THE COURT: Overruled. A. Yes, he was. Q. And, again, you base that on what you have just described to the jury, correct? MR. LEAR: Objection. THE COURT: Overruled. A. Correct. Q. Officer, you testified about what your opinion is to what the reading would have been, correct; do you remember that? A. That's correct. * * * Q. Officer, as far as field sobriety tests I believe you said he failed all three, is that correct? A. That's correct. Q. Officer, what is the meaning of a 0.10? MR. LEAR: Objection. THE COURT: Overruled. A. 0.10 in a breath test is one-tenth of one gram by weight per 210 liters of air or breath, in this case. Q. Would you expand upon that a little bit for the jury, please? MR. LEAR: Objection. May we approach? THE COURT: No need to approach. Make the question more specific. -11- BY MR. LUKCSO: Q. Specifically what does that mean in laymen's terms to the jury, Officer? MR. LEAR: Objection. THE COURT: Overruled. Q. Can you do that? A. That person operating a vehicle that would test at that level is -- MR. LEAR: Objection. May we approach? THE COURT: No. I'm going to ask you to stop interrupting. Your objection has been ruled on. A. The person operating a vehicle that would have tested at that level is presumed to be under the influence of alcohol. Although appellant argues Greene's testimony violated the supreme court's holding in State v. Breeson (1990), 51 Ohio St.3d 123, this court does not agree. In Breeson the court stated: The trial court has broad discretion in admitting evidence based on scientific processes. [Citation omitted.] Its ruling on admission or exclusion of evidence will not be overturned absent a showing of an abuse of discretion. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. ***" (Citations omitted.) *** We hold that the HGN test has been shown to be a reliable test, especially when used in conjunction with other field sobriety tests and an officer's observations of a driver's physical characteristics, in determining whether a person is under the influence of alcohol. * * * *** [A]lthough results on an HGN test may be admissible at trial by a properly trained officer, such an officer may not testify as to what he or she believes a driver's actual or specific BAC level would be, based solely on the HGN test results. -12- * * * Accordingly, a properly qualified officer may testify at trial regarding a driver's performance on the HGN test as to the issues of probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol. See R.C. 4511.19(A)(1). However, such testimony may not be admitted to show what the exact alcohol concentration level of the driver was for purposes of demonstrating a violation of R.C. 4511.19(A)(2), (3), or (4). Id. at 129 130. (Emphasis added.) A review of Greene's testimony clearly demonstrates it fit within the stricture of Breeson. Greene thoroughly explained the scientific basis of and his training in administering the field sobriety tests, explained that he based his opinion that appellant was under the influence of alcohol on the totality of his observations, and indicated only that based on the manual's classification, he believed appellant's BAC would have been at least .10. Therefore, the testimony was evidence for the jury to consider in addition to all the other evidence regarding appellant's conduct. See, e.g., Newark v. Lucas (1988), 40 Ohio St.3d 100 at 104-105; State v. French (1995), 72 Ohio St.3d 446. Appellant also asserts Greene's use of the word "presumed" was prejudicial. However, in context, Greene used the word not in a legal sense, but in the manual's sense of making a "judgment call." In other words, Greene was explaining the factors which eventually led to his decision to place appellant under arrest: since appellant exhibited certain signs and had failed three sobriety tests in a row, Greene surmised appellant was under the influence -13- of alcohol. See, e.g., State v. Williams (1992), 83 Ohio App.3d 536. This court, therefore, sees no prejudicial error either in the admission of Greene's testimony or in the trial court's denial of appellant's motions to strike and for a mistrial. State v. Breeson, supra; State v. Callihan (1992), 80 Ohio App.3d 184 at 196. For the foregoing reasons, appellant's first assignment of error is overruled. Appellant's third assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY INSTRUCTING THE JURY THAT "YOUR DUTY IS CONFINED TO THE DETERMINATION OF THE GUILT OR INNOCENCE OF THE DEFENDANT" IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO A JURY VERDICT, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. Appellant argues one of the trial court's instructions to the jury improperly shifted the burden of proof from the prosecution to the defense "by implying that an accused has a duty to prove innocence." This court finds appellant's argument to be baseless. The trial court instructed the jury as follows: On each separate count the jury is instructed to fill in their verdict of guilty or not guilty. The jury is required to sign their name in ink. When you have reached a verdict you will complete the form which correspond (sic) to your decision and to sign the verdict in ink. If all of you are able to agree that the State proved or failed to prove beyond a reasonable doubt all -14- the essential elements of each separate charge, then you will complete the following verdict by inserting the word "guilty" or the words "not guilty" in the blank and signing the completed verdict. Punishment. You may not discuss or consider the subject of punishment. Your duty is confined to the determination of the guilt or innocence of the defendant. In the event you find the defendant guilty, the duty to determine the punishment is placed, by law, upon the Court. (Emphasis added.) With regard to "Punishment," the trial court used the language set forth in the Ohio Jury Instructions. OJI instructions are "recommended instructions *** crafted by eminent jurists to assist trial judges with correctly and efficiently charging the jury as to the law applicable to a particular case." State v. Martens (1993), 90 Ohio App.3d 338. While OJI language should not be blindly applied, it is useful as a guide for correct statements of law. State v. Burchfield (1993), 66 Ohio St.3d 261; cf., State v. Napier (1995), 105 Ohio App.3d 713. It is axiomatic that a jury instruction must be viewed in the context of the overall charge, not merely judged in artificial isolation. State v. Thompson (1987), 33 Ohio St.3d 1 at 12-13; State v. Price (1979), 60 Ohio St.2d 136. In this case, the context of the charge clearly demonstrates the jury was told specifically the burden of proof with regard to every element of each charge rested only on the city. Thus, when considering the fact that the trial court had sole responsibility for determining punishment, if any was required, the jury could not conclude any burden of proof has shifted to appellant. State v. Burchfield, supra; cf., State v. Brown (1982), 7 Ohio App.3d 113. -15- The trial court, therefore, did not err in using this language when instructing the jury. Accordingly, appellant's third assignment of error is also overruled. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIM.R. 29(A) WITH RESPECT TO ALL CHARGES IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE CONSTITUTION OF THE STATE OF OHIO. Appellant argues the state failed to provide sufficient evidence to prove essential elements of all the crimes for which he was convicted; therefore, the trial court erred in failing to grant his Crim. R.29 motions for acquittal. This court, however, does not agree. According to Crim.R. 29(A), a motion for judgment of acquittal may be granted if the evidence is insufficient to sustain a conviction on the offense charged. If, however, reasonable minds can reach different conclusions as to whether each element of the offense has been proven beyond a reasonable doubt, the motion must be overruled. State v. Bridgeman (1978), 55 Ohio St.2d 261; State v. Jenks (1991), 61 Ohio St.3d 259, syllabus 2. An appellate court reviewing the denial of a Crim. R. 29 motion is required to view the evidence in a light most favorable to the prosecution. Id.; State v. Martin (1983), 20 Ohio App.3d 172, 175. -16- Having thoroughly scrutinized the record, this court finds there was sufficient evidence presented at trial which, if believed, would convince the average mind of appellant's guilt of the offenses charged beyond a reasonable doubt. Walls testified he observed the vehicle as it was "straddling" two lanes; he then watched it travel "over the white marker line which displayed where the edge of the lane was" for a length of time before it pulled into a driveway to stop. He stated he saw appellant clearly when appellant opened the driver's side door because the car's interior light illuminated the scene. Walls testified further that after he had turned his cruiser around and reapproached, he observed that now both of the car's doors were open and there was "movement" around the front of the car; then the doors closed and the car pulled away. When Walls resumed following the car, the driving of it had changed: it was now "weaving back and forth." Finally, after Walls stopped the car, the police officers discovered appellant's driver's license was no longer valid. A review of the record thus reveals ample evidence such that reasonable minds could reach different conclusions as to whether each material element of the crimes was proven beyond a reasonable doubt. See, e.g., State v. Gill (1994), 70 Ohio St.3d 150; State v. Hiler (1994), 96 Ohio App.3d 271. It is within the province of the jury to choose between competing constructions of the evidence and an appellate court will not substitute its judgment for that of -17- the jury. The trial court did not err in overruling appellant's motions for acquittal. State v. Jenks, supra, at 273. Accordingly, appellant's fourth assignment of error is also overruled. Appellant's fifth assignment of error states: THE JUDGMENTS OF CONVICTION ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. Appellant argues that based upon the totality of the evidence no reasonable jury could have found him guilty of the offenses charged. His argument is not persuasive. In State v. Martin, supra, at 175 the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Moreover, the weight of the evidence and the credibility of -18- the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A review of the record in this case demonstrates appellant's convictions for DUI, DUS and DOML were in accord with the manifest weight of the evidence. The officers' testimony was clear and consistent. Appellant's evidence, on the other hand, was improbable and contradicted. Power indicated she was driving when Walls noticed her car; however, she had previously testified that once she had arrived at Cerny's house, she had no intention of driving thereafter. Indeed, Power testified that just after her arrival, Cerny drove Power's car when the two women went to fetch appellant. Moreover, Power testified there were many things about that night that she simply could not remember. Furthermore, in rebuttal of Power's testimony, the city prosecutor presented the testimony of Officer Brown, who had heard Power admit on the night of the incident that originally appellant had been driving because "he was less drunk than she was." In short, there was consistent, credible evidence adduced at trial in this case which supported the jury's conclusion that appellant was driving outside of marked lanes of travel while under the influence of alcohol and with an invalid driver's license. Elyria v. Tress (1991), 73 Ohio App.3d 5; cf., State v. Murphy (1986), 30 Ohio App.3d 255. The record in this case reflects that, weighing all the evidence, drawing all the reasonable inferences therefrom and -19- considering the testimony and credibility of the parties' witnesses, the verdict fails to indicate the jury lost its way and created a manifest miscarriage of justice. State v. Martin, supra. Accordingly, appellant's fifth assignment of error is also overruled. Lastly, appellant's second assignment of error is addressed as follows: THE PROSECUTOR'S REMARKS DURING THE STATE'S CLOSING AND REBUTTAL CLOSING ARGUMENTS CONSTITUTED PREJUDICIAL MISCONDUCT AND/OR THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO SUSTAIN APPELLANT'S NUMEROUS OBJECTIONS DURING THE PROSECUTOR'S CLOSING ARGUMENTS EACH OF WHICH DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION. Appellant argues that the conduct of the prosecutor in this case was so egregious that it denied him his right to a fair trial. Specifically, appellant contends that during closing argument the prosecutor expressed personal opinions concerning the truthfulness of appellant's witnesses and his defense. This court has examined the record in light of appellant's contentions; it concludes that although the prosecutor's conduct was at the borderline of acceptable behavior, appellant's argument remains unpersuasive. Generally, conduct of the prosecutor at trial shall not be a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. It has been held the trial -20- court shall afford the prosecutor some latitude and freedom of expression during closing argument. State v. Apanovitch, supra. Therefore, a defendant shall be entitled to a new trial only when a prosecutor makes improper remarks and those remarks substantially prejudice the defendant. State v. Smith (1984), 14 Ohio St.3d 13. In the analysis of whether the defendant was deprived of a fair trial, the effect of the prosecutor's conduct must be considered in light of the entire case in order to determine whether the conduct was prejudicial. Thus, the test is whether absent the prosecutor's remarks the fact-finder would have found the defendant guilty. State v. Maurer (1984), 15 Ohio St.3d 239, 267. A review of the record in this case reveals that although the prosecutor made extremely indiscreet remarks, in view of the overwhelming nature of the evidence of appellant's guilt, the remarks do not warrant reversal. Clearly, the prosecutor characterized appellant's evidence; however, it cannot be stated these remarks were not based upon facts which were not in evidence. Moreover, the prosecutor stated to the jury that it was to rely on its own memory of the testimony and to listen to the trial court's instructions on the law. The trial court, in turn, could have been more vigilant in curbing some of the prosecutor's excesses. However, the trial court took care to instruct the jury that the arguments of counsel were not evidence and were not to be considered as such in the jury's deliberation. A presumption always exists that the jury has -21- followed the instructions given to it by the trial court. Pang v. Minch (1990), 53 Ohio St.3d 186. Ordinarily, a prosecutor may not give his personal opinion concerning the credibility of witnesses and, certainly, this court does not condone such actions. However, the comments made in this case do not mandate reversal since it is clear from the entire record that the comments did not substantially prejudice appellant. State v. Henderson (Apr. 26, 1990), Cuyahoga App. No. 56828, unreported; cf. State v. Smith, supra. Since a review of the record fails to indicate the prosecutor's comments in his closing argument substantially prejudiced appellant and denied appellant his right to a fair trial, error, if any, was therefore harmless beyond a reasonable doubt. State v. Maurer, supra; State v. Jenks, supra; State v. Vrona (1988), 47 Ohio App.3d 145. Accordingly, appellant's second assignment of error is also overruled. Appellant's convictions are affirmed. -22- It is ordered that appellee recover of appellant its 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 Parma Municipal 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 Rules of Appellate Procedure. DAVID T. MATIA, P.J., AND *CHARLES D. ABOOD, J., CONCUR. JUDGE KENNETH A. ROCCO *(SITTING BY ASSIGNMENT: Judge Charles D. Abood, retired, Sixth District). N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .