COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71921 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RUBIN TRIPLETT : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-340698 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosector BY: GAIL D. BAKER (#0064772) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT A. DIXON (#0022466) 1280 West Third Street, #100 Cleveland, Ohio 44113 SPELLACY, J.: Defendant-appellant Ruben Triplett ( appellant ) appeals from his conviction for felonious assault in violation of R.C. 2903.11. 2 Appellant assigns the following errors for review: . THE APPELLANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF LAW AND DEPRIVED OF A FAIR TRIAL DUE TO REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT. . THE APPELLANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY VIRTUE OF THE PROSECUTOR'S DISCRIMINATORY USE OF PEREMPTORY CHALLENGES. . THE APPELLANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL DUE TO INTRODUCTION OF EVIDENCE OF OTHER ACTS. . THE LOWER COURT DENIED THE APPELLANT DUE PROCESS OF LAW AND A FAIR TRIAL WHEN IT CHARGED THE JURY ON THE LAW RELATIVE TO AIDER AND ABETTOR. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On July 11, 1996, appellant was indicted for one count of felonious assault. At appellant's trial, Douglas Hemphill testified that on May 17, 1996, the then sixteen-year old Hemphill was walking with his girlfriend, Clenita Dickerson, to a bus stop. Both had just finished school for the day at the Health Career Center located at East 32nd Street and Payne Avenue in Cleveland. Some boys riding in two cars began yelling comments to Dickerson. Hemphill told the boys Dickerson was with him. The boys then began yelling derogatory comments to Hemphill. The car stopped on Payne Avenue. One of the boys exited. Hemphill identified the person as appellant. Appellant struck Hemphill who began defending himself. At least two of the other occupants of the car joined in the fight. 3 Hemphill was struck in the face and head. He fell to the ground, unconscious. Hemphill recalled being taken to the hospital in an ambulance. Dickerson also identified appellant as the person who began the fight with Hemphill. She stated that three of the other boys from the cars became involved in the assault. After Hemphill fell to the ground, the boys, including appellant, kicked and stomped Hemphill. Many of the blows were directed toward Hemphill's head. The assailants left after two to three minutes. Hemphill lay on the ground unconscious and spitting up blood. James Wade testified that, on the day in question, he was driving on East 32nd Street when he noticed a fight taking place. He observed one boy laying on the ground being kicked in the head by three or four people. Wade parked his car and went to assist. By that time, the attackers had left the scene. Wade observed Dickerson holding Hemphill's head in her arms as Hemphill lay on the ground. Wade heard someone in the crowd say they were coming back. Wade saw a gray car drive up and stop. Appellant stepped from the car and walked past Wade. Appellant said that they did not know what they had. Appellant then picked up a bracelet from the ground while stating that they had four grand there and did not know it. Appellant returned to the vehicle which drove away. Wade copied down the license plate number of the car and gave the information to the police. The police later determined that the license plate number was registered to a car owned by appellant. Appellant presented three witnesses who were present at the 4 scene. The three had driven to the school with some others in two separate cars. All three men testified that appellant had remained in his car and never joined in the altercation. Instead, appellant advised the others against any fight with Hemphill. Appellant testified he went to the school because an acquaintance expected some problems. One of the boys with appellant tried to talk to Dickerson. Appellant told the boy to leave Dickerson and Hemphill alone. The fight occurred around the corner from where appellant sat in his parked car. He denied ever hitting Hemphill or returning to the scene to retrieve a bracelet. Appellant testified that another one of the boys began the fight with Hemphill and later went back to pick up the bracelet. II. In his first assignment of error, appellant contends the trial court erred by overruling his motion for mistrial based on prosecutorial misconduct during closing argument. Appellant argues misconduct occurred when the prosecutor commented that neither appellant nor his friends ever went to the police after they became aware appellant was suspected in the crime to tell the police appellant was innocent. The grant or denial of a motion for mistrial rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 182. This is because the trial court is in the best position to determine whether a mistrial is needed. State v. Glover (1988), 35 Ohio St.3d 18, 19. A mistrial should not be 5 ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused are adversely affected. State v. Nichols (1993), 85 Ohio App.3d 65, 69. Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127. A prosecuting attorney's conduct during trial does not constitute a ground for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips (1982), 455 U.S. 209, 219. The effect of the prosecutor's alleged misconduct must be considered in light of the whole trial. State v. Maurer (1984), 15 Ohio St.3d 239, 266. The remarks to which appellant objects occurred during closing argument. The test regarding prosecutorial misconduct in closing argument is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14. A prosecutor is afforded wide latitude in closing arguments. State v. Jacks (1989), 63 Ohio App.3d 200, 210. It is within the trial court's sound discretion to determine if a prosecutor has gone beyond the bounds permitted. State v. Benge (1996), 75 Ohio St.3d 136. A judgment will not be reversed if it is clear beyond a reasonable doubt that, absent the prosecutor's remarks, the jury would have 6 found the defendant guilty. State v. Loza (1994), 71 Ohio St.3d 61, 78. During closing argument, the prosecutor essentially stated that if appellant was innocent, he or his friends would have gone to the police once they discovered the police were investigating appellant as a suspect in the case. Appellant contends that this line of argument was an impermissible comment on appellant's post- arrest Fifth Amendment right to remain silent which effectively shifted the burden of proof to the defense. During the defense's closing argument, counsel commented that the trial was the first opportunity since May that appellant was able to tell his side of the story. During the state's case, defense counsel questioned Detective McCoy about her attempts to get a statement from appellant. Appellant testified he knew the detective was trying to contact him but he did not try to contact her until his car was impounded. Appellant also testified that no one had asked him what happened on May 17, 1996, until his testimony at trial. Appellant first introduced the issue of appellant's lack of a prior statement into the trial and in closing argument. Both the state and defense have latitude in responding to the arguments of opposing counsel. Loza, supra, at 78. Moreover, the thrust of the prosecution's argument related to appellant's pre-arrest silence. The prosecutor argued that appellant and his associates knew the police suspected appellant was involved in the crime, yet none of them went to the police in an effort to exonerate appellant. 7 As it was appellant who introduced the issue of appellant's lack of a prior statement into trial, the prosecutor had the latitude to respond. The remarks were not improper. Appellant also objects to the prosecutor referring to the people who attacked Hemphill as thugs. Although the language is strong, the evidence shows Hemphill was beaten by three or more people until he fell to the ground. His attackers continued the assault by repeatedly kicking Hemphill to the head and body. Hemphill was left unconscious and spitting up blood. Those who participated in this crime could be accurately described as thugs. Lastly, appellant claims the prosecutor accused the defense witnesses of being rehearsed. As the defense counsel remarked in his closing argument that he did not rehearse the testimony of the defense witnesses, appellant cannot now complain that the prosecution countered that statement in his rebuttal argument. The trial court did not abuse its discretion by overruling appellant's motion for a mistrial based on prosecutorial misconduct during closing argument. Appellant's first assignment of error is overruled. III. In his second assignment of error, appellant argues he was denied due process of law and equal protection by the prosecutor's use of a peremptory challenge to exclude an African-American juror. Appellant contends that the prosecutor's expressed reason for excusing that juror was the equivalent of offering no reason at all for the use of the peremptory challenge and supports appellant's 8 belief that the juror's exclusion was racially motivated. After the state exercised one of its peremptory challenges to exclude the juror in question, the defense objected on the grounds that the exclusion was based on the juror's race. The state expressed its reason for the exclusion as being because the juror was young and unemployed and, therefore, in a similar situation to the defendant. The state did not want an unemployed woman judging an unemployed man. The trial court stated it was not satisfied that the state had improperly exercised the challenge with regard to that juror. A defendant has the right to be tried by a jury whose members are selected by nondiscriminatory criteria. Batson v. Kentucky (1986), 476 U.S. 79, 86. Peremptory challenges may not be used purposefully to exclude members of a cognizable racial group from jury service solely on the basis of their race. Powers v. Ohio (1991), 499 U.S. 400. A three-step analysis is employed by a trial court when evaluating claims that a prosecutor used peremptory challenges in a way which violates the Equal Protection Clause. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been make, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror in question. Third, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Batson, supra, at 96-98. 9 The second step of the inquiry is complete if the prosecutor offers an explanation which is without an inherent discriminatory intent. The reason offered will be deemed to be race neutral even if it is not persuasive or even plausible. Purkett v. Elem (1995), 514 U.S.--, 115 S.Ct. 1769, 131 L.Ed.2d 834. It is not until the third step of the Batson inquiry that the persuasiveness of the prosecutor's explanation becomes relevant. During this step, the burden of persuasion rests with the defendant. The trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. Id. The critical question to be resolved by the trial court is whether the state's race- neutral explanation should be believed. Hernandez v. New York (1991), 500 U.S. 352. The reason offered by the prosecution need not rise to the level necessary to justify a challenge for cause. However, it must be more than a simple affirmation of general good faith or a denial of discriminatory intent. Batson, supra, at 97. The conclusion of the trial court that the prosecution did not possess a discriminatory intent in the exercise of its peremptory challenge will not be reversed on appeal absent a determination that the decision was clearly erroneous. State v. Hernandez (1992), 63 Ohio St.3d 577, 583. This deference is accorded the trial court's finding because a Batson claim rests largely on issues of credibility. Therefore, the trial court is best equipped to resolve claims of discrimination in jury selection. Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St.3d 95. 10 In State v. Nobles (1995), 106 Ohio App.3d 246, the state excused the only African-American member of the venire and offered as its explanation the reason that the woman was an unemployed college student who was close in age to the defendant. The court found that the trial court's determination the peremptory challenge was not made with a discriminatory intent was supported by the record as other women with a post-high school education also were excluded by the state. In the instant case, appellant points out that, although the prosecutor stated his reason for excluding the juror was her youth and lack of employment, other women who were not employed outside their home were not excused from service on the jury by the state. However, none of the other women seem to be close in age to the appellant as was the juror in question. The youth of this juror was an additional factor in the state's explanation for the use of the peremptory challenge. Further, the juror had recently been laid off from her employment. Apparently, the juror was not a homemaker by choice. Therefore, the juror's situation differed from the other women who eventually became jury members. The determinationof the trial court that no discriminatory intent was present was not clearly erroneous. Appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant submits that he was denied due process of law and a fair trial because of the introduction of evidence of other acts. Specifically, appellant 11 objects to the testimony of Detective McCoy that she obtained information regarding appellant's height and weight from an arrest report. The trial court immediately sustained appellant's objection. Later, the defense asked for a mistrial which the trial court denied. The trial court did not believe the statement was a significant part of the detective's testimony or that appellant was prejudiced by the statement. Appellant argues that the statement was not admissible under Evid.R. 404(B) which prohibits the admission of evidence of other crimes, wrongs, or acts to prove the character of a defendant. However, the detective's statement was not admitted into evidence as the trial court sustained appellant's objection. Therefore, Evid.R. 404(B) is inapplicable to the instant case. Whether a mistrial should be granted rests within the sound discretion of the trial court. Sage, supra. A review of the record does not indicate that appellant's substantial rights were violated. Even if the evidence had been admitted, a conviction will not be reversed if there is no reasonable possibility that the evidence contributed to the verdict. State v. Stewart (1996), 111 Ohio App.3d 525, 532. Three eyewitnesses testified that appellant instigated and helped carry out the beating of Hemphill. The statement by Detective McCoy was not significant when viewed in the overall context of the trial. There is no likelihood the statement contributed to appellant's conviction. Appellant's third assignment of error lacks merit. V. 12 In his fourth assignment of error, appellant objects to the jury charge on aiding and abetting. Appellant submits that this was error as the state never argued that appellant acted as an aider and abettor but as the principal offender. Because the prosecution never properly raised this issue, appellant could not defend himself against it. Appellant contends the instruction presented the jury with a possible compromise position that would still result in appellant's conviction even if they did not agree that appellant actually struck Hemphill. A criminal defendant is entitled to complete and accurate jury instructions on all the issues raised by the evidence. State v. Sneed(1992), 63 Ohio St.3d 3, 9. The trial court is to instruct the jury by clearly and concisely stating the principles of law necessary to allow a fair verdict and the administration of justice. State v. Baker (1993), 92 Ohio App.3d 516, 536. When reviewing the trial court's charge, a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. State v. Price (1979), 60 Ohio St.2d 136, 141. A reviewing court must consider the whole charge as given rather than separate portions of the charge. State v. Grambo (1947), 82 Ohio App. 473. A judgment will not be reversed if a portion of the general charge is improper and misleading unless the entire charge resulted in prejudicial error. State v. Porter (1968), 14 Ohio St.2d 10. A person who performs every act constituting an offense is the principal offender. State v. Williams (1996), 74 Ohio St.3d 569, 13 573. The state presented evidence that appellant was one of at least three people who attacked Hemphill. Even appellant's witnesses agreed that more than one person was responsible for the assault on Hemphill. The state's witnesses testified that appellant started the altercation and was one of the people who kicked Hemphill in the head. Defense witnesses testified appellant never left his car and joined in the altercation. There never was any argument appellant could be convicted of felonious assault just by virtue of having been present at the scene. Rather, it was the state's contention appellant was part of a group of people who joined together to attack Hemphill, with appellant beginning the attack. When the evidence adduced at trial could reasonably be found to have proven the defendant guilty as an aider and abettor, a jury instruction by the trial court on that subject is proper. State v. Perryman (1976), 49 Ohio St.2d 14, paragraph five of the syllabus. There was evidence admitted at trial which supported a jury instruction on aiding and abetting. Appellant's fourth assignment of error is overruled. Judgment affirmed. 14 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 appeal 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. PATRICIA A. BLACKMON, P.J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. 15 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(B) 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 .