COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71065 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RONALD DUDAS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 29, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-334734. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Frank Gasper, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Scott Roger Hurley, Esq. Assistant Public Defender 100 Lakeside Place 1200 W. Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Ronald Dudas, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-334734 of the offense of intimidation of the Honorable Thomas P. Curran, a member of the Cuyahoga County Common Pleas Court, in violation of R.C. 2921.03. Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On or about September 11, 1995, Ronald Dudas, defendant- appellant, testified as a state's witness in a criminal fraud case in the courtroom of Judge Thomas P. Curran. Defendant-appellant had previously entered a plea of guilty to fraud in a related criminal case also in Judge Curran's courtroom. At the conclusion of the trial during which defendant-appellant testified, Judge Curran sentenced defendant-appellant to one year incarceration followed by probation after the expiration of the jail term. Subsequently, Judge Curran received a number of letters from defendant-appellant seeking some form of early release. Included among the correspondence was a pro se motion for shock probation. Judge Curran denied defendant-appellant's motion for shock probation by journal entry dated December 6, 1995 in which the trial court stated "State of Ohio opposes motion for shock probation and this court denies motion for the reason that sentence was appropriate under the circumstances." (Tr. 177.) -3- On January 18, 1996, Judge Curran received information from the officers of the Cleveland Police Intelligence Unit regarding an alleged threat to Judge Curran by defendant-appellant. Apparently, Daniel Ott, a long-time criminal informant who was imprisoned with defendant-appellant at the Richland Correctional Camp, befriended defendant-appellant and learned of defendant-appellant's frustration with Judge Curran. Ott stated that, for a price, he could have Judge Curran killed. Allegedly, defendant-appellant rejected this idea but did express an interest in having Judge Curran's hand broken in retaliation for his prison sentence. (Tr. 263.) Ott then contacted Detective Thomas Doyle of the Eastlake Police Department and informed Doyle of the alleged threat to Judge Curran. Detective Doyle, who had used Ott as a criminal informant on prior cases, then contacted the Cleveland Police Intelligence Unit. Ott was eventually instructed to procure from defendant- appellant written proof of the plan to injure Judge Curran. Ott procured from defendant-appellant a note in defendant-appellant's handwriting which stated: "Ricky, pay the bearer of this note 25 hundred dollars in cash once it has been confirmed that the matter with Judge Curran has been handled to my satisfaction. Ron Dudas" After Ott forwarded this note to Detective, Ott was transferred to Grafton Correctional Institution. (Tr. 278.) In exchange for Ott's assistance in this matter, Cuyahoga County Assistant Prosecutor Frank Gasper and Judge Curran agreed to request a -4- reduction in Ott's original sentence by the Ashland County Court of Common Pleas. On February 22, 196, the Cuyahoga County Grand Jury returned a two-count indictment against defendant-appellant alleging attempted felonious assault, in violation of R.C. 2923.02 and R.C. 2903.11, and intimidation, in violation of R.C. 2921.03. On February 26, 1996, defendant-appellant was arraigned in the Cuyahoga County Court of Common Pleas whereupon a plea of not guilty was entered to both counts of the indictment. On May 30, 1996, defendant-appellant filed a motion in limine to exclude evidence of his acts, pursuant to Evid.R. 404(B). Specifically, defendant-appellant sought the exclusion of any evidence pertaining to the alleged prior intimidation of Judge Timothy J. McGinty of the Cuyahoga County Court of Common Pleas by defendant-appellant. A jury trial began on June 10, 1996. Prior to commencement of trial, the trial court conducted a hearing on defendant- appellant's motion in limine. The state maintained that the other acts evidence regarding Judge McGinty was admissible to show motive and intent for the case involving Jude Curran. The trial court excluded the "other acts" evidence pertaining to Judge McGinty, unless the defense argued during trial that the note in question regarding Judge Curran was actually an attempt to secure an early release and not threatening in nature. if such defense was asserted, then the "other acts" evidence involving Judge McGinty would be permitted for rebuttal purposes. (Tr. 139.) -5- At trial, defendant-appellant testified that he had sent numerous letters to Judge Curran in an attempt to obtain an early release from prison without success. At the end of January, 1996, Daniel Ott, a fellow inmate and criminal informant, allegedly approached defendant-appellant and told him that he had a friend who was close to Judge Curran and could help defendant-appellant to obtain an early release from prison. Defendant-appellant testified further that during the first week in February, 1996, he drafted a note which called for payment to the bearer upon defendant- appellant's early release. (Tr. 642.) Defendant-appellant gave this note to Ott who made a telephone call. When Ott returned he maintained that the note was too specific and allegedly dictated the ambiguous language of the note that was eventually sent to Detective Doyle. (Tr. 644.) Defendant-appellant did not deny that he wrote the note in question but maintained throughout his testimony that the note's only purpose was to obtain release from prison. On cross-examination, the state questioned defendant-appellant regarding an incident in which defendant-appellant purportedly joined a downtown health club so that he could harass and intimidate Judge Timothy J. McGinty in retaliation for Judge McGinty's statements during the sentencing of defendant- appellant's former girlfriend, Patricia Boychuk. Defense counsel voiced numerous objections to this line of questioning. (Tr. 674.) Defendant-appellant denied joining the health club in order to intimidate Judge McGinty. -6- The defense also elicited the testimony of Daniel Costanzo, Donnis Dixon and Michael Taylor, three inmates at the Richland Correctional Camp, who all testified that Ott had admitted to setting up defendant-appellant under the pretext of assisting defendant-appellant to obtain an early release from prison. Daniel Costanzo and Michael Taylor both testified that Ott had personally admitted to setting up defendant-appellant in order to receive preferential treatment from the Ashland County Court in the way of a reduced sentence. Donnis Dixon testified that he overheard Ott discussing his plan to set up defendant-appellant while Ott was on the telephone. Dixon informed defendant-appellant of Ott's alleged plan, however defendant-appellant did not believe that Ott was attempting to set him up. (Tr. 406.) On June 14, 1996, the jury returned its verdict finding defendant-appellant not guilty of attempted felonious assault and guilty of intimidation. On June 27, 1996, the trial court denied defendant-appellant's motion for acquittal pursuant to Crim.R. 29 and sentenced defendant-appellant to two years at the Lorain Correctional Institute. On August 5, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Ronald Dudas', defendant-appellant's, first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO EXCLUDE EVIDENCE OF "OTHER ACTS" OF APPELLANT IN VIOLATION OF EVID.R. -7- 404(B), AND R.C. 2945.49, THEREBY DENYING APPELLANT DUE PROCESS ACCORDED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. A. THE ISSUE RAISED: ADMISSION OF "OTHER ACT" EVIDENCE. Defendant-appellant argues, through his first assignment of error, that the trial court improperly admitted evidence pertaining to defendant-appellant's alleged intimidation of Judge 1 McGinty in violation of Evid.R. 404(B) and R.C. 2945.59. Initially, defendant-appellant maintains that the state failed to inform defense counsel of the particular purpose for which the alleged "other acts" were admissible under Evid.R. 404(B) or R.C. 2945.59, prior to trial as required. See State v. Jurek (1989), 52 Ohio App.3d 30, 34. Defendant-appellant argues further that the evidence in question was not relevant to demonstrate proof of motive or intent relating to the alleged intimidation of Judge Curran. It is defendant-appellant's position that even if the evidence was properly admitted by the trial court pursuant to Evid.R. 404(B) and R.C. 2945.59, the state completely failed to offer substantial proof of the alleged acts against Judge McGinty. Lastly, defendant-appellant states that the evidence should not have been admitted during the cross-examination of defendant-appellant but during the state's rebuttal as originally decided by the trial court. 1 Defendant-appellant incorrectly refers to R.C. 2945.49 on page fifteen of his brief, however, it is apparent that the actual statute upon which defendant-appellant relies is R.C. 2945.59. -8- B. STANDARD OF REVIEW FOR "OTHER ACTS" EVIDENCE. Generally, the admission or exclusion of evidence is left to the sound discretion of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 265. However, evidence tending to prove that the accused has committed other acts independent of the crime for which he is on trial is inadmissible to show that the defendant acted in conformity with his bad character. State v. Gumm (1995), 73 Ohio St.3d 413, 426; State v. Sundermeier (Aug. 30, 1996), Ottawa App. No. OT-95-061, unreported. However, Evid.R. 404(B) sets forth the following exceptions to this general rule: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Similarly, R.C. 2945.59, Proof of defendant's motive, states: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. In order to establish that evidence as to other acts falls within this exception, the state must demonstrate that the -9- defendant utilized "an identifiable scheme, plan, or system" to commit the crime. State v. Elliott (1993), 91 Ohio App.3d 763. Scheme, plan or system testimony of other acts is admissible to establish motive or intent where the similarities in the crimes indicate there is a strong likelihood that the offender in the solved crime also committed the unsolved crime. State v. Coleman (1988), 37 Ohio St.3d 286 at paragraph three of the syllabus. In State v. Flonnory (1972), 31 Ohio St.2d 124, 126, the court voted that R.C. 2945.59 permits the showing of other acts when such other acts tend to show certain things, e.g., motive and intent, as set forth in the statute. See also State v. Gumm, supra. C. THE TRIAL COURT DID NOT ERR IN ALLOWING THE "OTHER ACTS" EVIDENCE PURSUANT TO EVID.R. 404(B) AND R.C. 2945.59. In the case sub judice, a review of the record demonstrates that the trial court properly admitted into evidence testimony regarding the alleged intimidation of Judge Timothy McGinty by defendant-appellant. Initially, defendant-appellant argued that the state failed to properly disclose the particular purpose for which the alleged "other acts" were admissible under Evid.R. 404(B). Defendant-appellant relies upon State v. Jurek, supra, in which this court found that upon the timely request of defense counsel, the state should specify those elements under Evid.R. 404(B), for which the "other acts" evidence is being introduced to prove. Such disclosure should occur before the "other acts" evidence is introduced at trial. In this case, the state did, in -10- fact, disclose the specific purpose for which the disputed evidence as to be introduced: THE COURT: How do you intend to use this? Do you intend to use it in your case-in- chief? MR. GASPER: Yes, your Honor. To show the purpose and effect in regards to the intent and pattern that was established earlier, that is continued, and there is other evidence to support this. (Tr. 132.) This exchange took place prior to the beginning of opening statements, clearly before the introduction of the disputed evidence. Defendant-appellant's first contention is without merit. Defendant-appellant argues further that the disputed evidence regarding Judge McGinty was not relevant to defendant-appellant's motive or intent relating to the alleged intimidation of Judge Curran. Here, the state introduced the prior alleged intimidation of Judge McGinty to demonstrate defendant-appellant's intent in writing the letter to his brother Ricky regarding the "matter with Judge Curran." This evidence directly rebutted the theory supporting defendant-appellant's case regarding his alleged intent behind the letter in question. It is apparent that the highly probative value of this evidence was not substantially outweighed by the possibility of unfair prejudice and was therefore properly admitted into evidence. See State v. Galan (1990), 67 Ohio App.3d 68, 71. It is defendant-appellant's contention that, even if the "other act" evidence in dispute was properly admitted, the state failed to offer substantial proof of defendant-appellant's -11- alleged acts against Judge McGinty. This contention is without merit given the fact that the testimony of the criminal informant Daniel Ott clearly refers to defendant-appellant's threats toward another Cuyahoga County Common Pleas Court Judge, Judge "Timothy." (Tr. 261.) Since the weight of the evidence and credibility of the witnesses are primarily for the trier of fact, State v. DeHass (1967), 10 Ohio St.2d 230, Ott's testimony, if believed, and defendant-appellant's corresponding admission that he did join Judge McGinty's health club, albeit for an allegedly innocent purpose, provides substantial proof that the alleged intimidation of Judge McGinty did in fact occur. Lastly, defendant-appellant maintains that the trial court should not have allowed evidence of the alleged intimidation of Judge McGinty during the cross-examination of defendant- appellant, rather the evidence should have been brought during the state's rebuttal as the trial court originally ruled prior to trial. Defendant-appellant's argument is without merit in light of the fact that the evidence pertaining to Judge McGinty originally surfaced during the state's direct examination of Daniel Ott and during the defense counsel cross-examination of Ott. On direct examination, the prosecutor asked Ott a single question regarding appellant's mention of "Judge Timothy" in conversation with Ott. Rather than objecting, defense counsel on cross-examination of the witness went into the matter in much greater detail. Under these circumstances, defense counsel has waived any error in the initial admission of the testimony. -12- State v. Miller (1988), 56 Ohio App.3d 130; State v. Outlaw (Oct. 22, 1992), Cuyahoga App. No. 61194, unreported. In addition, during defendant-appellant's direct examination, defendant- appellant maintained that he only wrote the note in question for the benign purpose of securing an early release from Judge Curran. Therefore, the evidence pertaining to Judge McGinty was properly explored during the cross-examination of defendant- appellant. State v. Jones (Feb. 10, 1992), Stark App. No. CA- 8680, unreported. For the foregoing reasons, defendant- appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Ronald Dudas', defendant-appellant's, second assignment of error states: THE EVIDENCE IN THE CASE AT BAR WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY AS TO THE CHARGE OF INTIMIDATION, R.C. 2921.03. A. THE ISSUE RAISED: INSUFFICIENT EVIDENCE. Defendant-appellant argues, through his second assignment of error, that his conviction of the offense of intimidation was not supported by sufficient evidence. Specifically, defendant- appellant maintains that, viewing the evidence in a light most favorable to the prosecution, it is apparent that the state failed to prove beyond a reasonable doubt the fourth element of the offense of intimidation, "in discharge of his duty." It is defendant-appellant's position that the state was required to prove that, through his alleged action, defendant-appellant -13- intended to affect Judge Curran's decision in defendant- appellant's case, or, at the very least, affect the shock probation ruling. Since Judge Curran had previously denied defendant-appellant's pro se motion for shock probation on December 6, 1995 and had no further jurisdiction over defendant- appellant's case, defendant-appellant maintains that the note could not have any effect on the discharge of Judge Curran's duty pursuant to the intimidation statute. B. STANDARD OF REVIEW FOR SUFFICIENCY OF EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. 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 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its -14- verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. C. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT THE CONVICTION. In the case sub judice, both direct and circumstantial evidence was presented at trial by the state in an attempt to prove the elements of the offense of intimidation in violation of R.C. 2921.03. R.C. 2921.03 sets forth four elements of the offense of intimidation: 1) knowingly; 2) by force or unlawful threat of harm to any person or property; 3) attempt to influence, intimidate or hinder a public servant; 4) in the discharge of his duty. Defendant-appellant maintains that the state completely failed to approve the fourth element of intimidation pertaining to the "discharge of his duty." Defendant-appellant's contention is not supported by the record. Daniel Ott's testimony clearly set forth the fact that the purpose of defendant-appellant's note was to have Judge Curran injured: A. He said that he didn't want him killed. He just wanted him hospitalized. -15- Preferably he would like to have his right hand busted up. he didn't -- if he wasn't going to sign his shock papers, he didn't want him to sign any papers for a long time. (Tr. 263.) Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, to the facts of the underlying case, this court finds after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of intimidation proved beyond a reasonable doubt. Accordingly, the jury did not err in finding defendant-appellant guilty of the indicted offense nor was the trial court incorrect in overruling defendant-appellant's Crim.R. 29 motion for acquittal as sufficient evidence was presented to enable the jury to so conclude. State v. Price (1990), 69 Ohio App.3d 243. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Ronald Dudas', defendant-appellant's, third assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVED BEYOND A REASONABLE DOUBT. A. THE ISSUE RAISED: MANIFEST WEIGHT OF THE EVIDENCE. -16- Defendant-appellant argues that his underlying conviction was against the manifest weight of the evidence. It is defendant- appellant's contention that the state's evidence was minimal in nature, ambiguous, unreliable and self-serving given the fact that the state's case was based upon a facially innocuous note written by defendant-appellant and the testimony of a career criminal informant seeking an early release from prison in exchange for his testimony. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment -17- of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. C. DEFENDANT-APPELLANT'S CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -18- In this case, evidence was presented by way of the testimony of Daniel Ott, in an attempt to establish the elements of the offense of intimidation. Ott testified that defendant-appellant expressed a desire to injure Judge Curran so that the Judge would be unable to perform certain judicial duties (i.e., signing court orders). Further testimony from Detective Thomas Doyle and Detective John Crawford demonstrated that Ott had been a reliable informant in other criminal cases in the past. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the fact-finder to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the jury's verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of intimidation. Defendant- appellant's conviction was supported by substantial credible evidence upon which the trier of fact could reasonably conclude that defendant-appellant was guilty of the underlying offense. This is true in spite of the fact that the jury acquitted defendant-appellant on the charge of attempted felonious assault, R.C. 2923.02 and R.C. 2903.11. The elements of attempted felonious assault are significantly different from those of -19- intimidation and acquittal on one offense does not preclude conviction on the other. Defendant-appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Ronald Dudas', defendant-appellant's, fourth and final assignment of error states: APPELLANT WAS DENIED A FAIR TRIAL AND REQUISITE DUE PROCESS, GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION ND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE OF PROSECUTORIAL MISCONDUCT. A. THE ISSUE RAISED: PROSECUTORIAL MISCONDUCT. Defendant-appellant argues, thorough his final assignment of error, that the prosecutor's closing statements were rife with impermissible and prejudicial comment on the prosecutor's personal knowledge of a witness' credibility, the truthfulness of defense counsel and the prosecutor's personal sentiments and desires. it is defendant-appellant's contention that the state's closing argument was so prejudicial as to constitute plain error and deny defendant-appellant a fair trial. B. STANDARD OF REVIEW FOR PROSECUTORIAL MISCONDUCT. Generally, conduct of a prosecuting attorney at trial shall not be grounds for reversal unless the conduct deprives the defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St.3d 19; State v. Papp (1978), 64 Ohio App.2d 203. An appellant is entitled to a new trial only when a prosecutor asks improper -20- questions or makes improper remarks and those questions or remarks substantially prejudiced appellant. State v. Smith (1984), 14 Ohio St.3d 13. In analyzing whether an appellant was deprived of a fair trial, an appellate court must determine whether, absent the improper questions or remarks, the jury would have found the appellant guilty. State v. Maurer 91984), 15 Ohio St.3d 239, 266; State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported. The 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, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. In addition, should a defendant fail to object to the prosecutor's allegedly improper comments at trial pursuant to Crim.R. 52(B), the comments in question must rise to the level of plain error affecting the substantial rights of the defendant before this court can take notice of the error. Under a plain error analysis, reversal of a conviction is appropriate only if it can be said that, but for the alleged error, the result of the trial would clearly have been different. State v. Kent (1980), 68 Ohio App.2d 151; State v. Parker (Oct. 5, 1995), Cuyahoga App. No. 68156, unreported. C. DEFENDANT-APPELLANT WAS NOT DENIED A FAIR TRIAL. Notwithstanding defendant-appellant's contentions, this court does not feel that the prosecutor's statements during closing argument can be characterized as depriving defendant-appellant of a fair trial. As a general rule, a prosecutor is entitled to a -21- certain degree of latitude during closing argument. State v. Brown (1988), 38 Ohio St.3d 305; State v. Liberatore (1982), 69 Ohio St.2d 583, 589. Moreover, closing arguments must be viewed in their entirety to determine whether the remarks were prejudicial. State v. Mann (1993), 93 Ohio App.3d 301, 312; State v. Burgun (1978), 56 Ohio St.3d 354. In the case sub judice, a review of the prosecutor's closing argument in its entirety discloses no prejudice to any substantial rights of defendant-appellant. It is not error for the prosecutor to state a personal opinion as long as the opinion is based upon evidence presented at trial. State v. Tyler (1990), 50 Ohio St.3d 24, 41; State v. Stephens (1970), 24 Ohio St.2d 76, 83. Nor is it error for the prosecutor to argue what he believes the evidence has shown and the reasonable inferences which can be drawn therefrom. State v. Richey (1992), 64 Ohio St.3d 353, 362. For the foregoing reasons, this court finds the prosecuting attorney's remarks did not deprive defendant- appellant of a fair trial. Defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is 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 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 Rules of Appellate Procedure. PORTER, J. and ROCCO, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE 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 .