[Cite as State v. Jordan, 2012-Ohio-3793.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110833
TRIAL NO. B-1003262
Plaintiff-Appellee, :
vs. : O P I N I O N.
RUBEN JORDAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 24, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michele L. Barry, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant Ruben Jordan appeals the judgment of the
Hamilton County Court of Common Pleas convicting him of aggravated murder with
a firearm specification and possessing a weapon while under a disability. He was
convicted after a jury trial.
The Murder of Victor Davis
{¶2} In October 2008, Brian Austin was murdered. Victor Davis
identified Jordan’s son, Kareem Gilbert, as the perpetrator.
{¶3} After he had identified Gilbert as Austin’s killer, Davis told the
police that he feared for his life because of threats from Gilbert’s family. On October
31, 2008, Davis’s fears were confirmed, as he was fatally shot outside of his
apartment building.
{¶4} Gilbert was indicted for the murders of both Austin and Davis. But
in May 2010, Gilbert gave a recorded statement to police and prosecutors in which
he implicated Jordan as Davis’s assailant. As part of a written plea arrangement,
Gilbert agreed to plead guilty to reduced charges for the killing of Austin in exchange
for his testimony against Jordan.
{¶5} The case against Jordan proceeded to trial in January 2011. At
trial, the state presented the testimony of Dean Shade, a resident of Davis’s
apartment complex. Shade testified that on the night of Davis’s murder, he had
heard shots and had looked out of his window. He stated that he had seen a man
who matched Jordan’s general physical description walking from the scene of the
shooting.
{¶6} Kenneth Heard was a drug dealer from whom Jordan had regularly
bought crack cocaine. Heard testified that, after the murder of Davis, Jordan had
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OHIO FIRST DISTRICT COURT OF APPEALS
confessed to him that he had killed Davis and that he had let Gilbert take the blame
for the murder.
{¶7} Criminalist Paul Glindmeyer responded to the scene immediately
after Davis had been shot, and he noticed a quantity of what appeared to be fresh
saliva near Davis’s body. Glindmeyer testified it was a custom among some people to
mark their “turf” by spitting on the street or sidewalk. He took a sample of the saliva
and submitted it for deoxyribonucleic acid (DNA) testing. The testing revealed that
the DNA in the saliva matched that of Jordan.
{¶8} Kareem Gilbert took the stand and immediately repudiated his
prior statement implicating Jordan. Although he admitted having made the
statement, he contended that it had been fabricated and that neither he nor Jordan
had been present at the scene of Davis’s murder. The trial court admitted the
recording of the statement as well as a transcript into evidence with the limiting
instruction that the jury was to consider the statement for impeachment purposes
only.
{¶9} Jordan offered the testimony of his fiancée, Leshuande Ramsey,
who testified that both Jordan and Gilbert had been at home with her the entire
night of Davis’s murder. Jordan also called one of the detectives who had testified
for the state and questioned him about the possibility that Gilbert’s brother might
have killed Davis.
{¶10} The jury found Jordan guilty, and the trial court sentenced him to
life imprisonment with parole eligibility after 25 years for aggravated murder, a
consecutive three-year term of imprisonment for the firearm specification, and
another consecutive two-year term for possessing a weapon while under a disability.
The trial court denied Jordan’s motion for a new trial under Crim.R. 33.
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OHIO FIRST DISTRICT COURT OF APPEALS
Timeliness of Jordan’s Appeal
{¶11} Before we discuss Jordan’s assignments of error, we address the
state’s contention regarding this court’s jurisdiction to review the conviction. The
state maintains that because Jordan did not file his notice of appeal until more than
nine months after the sentence had been journalized, this court has jurisdiction to
review only the trial court’s denial of Jordan’s motion for a new trial.
{¶12} We find no merit in the state’s argument. Jordan’s motion for a
new trial stayed the time for appealing the conviction until 30 days after the trial
court’s ruling on the motion. App.R. 4. See also State v. Klein, 1st Dist. No. C-
970788, 1998 Ohio App. LEXIS 5757 (Dec. 4, 1998). Thus, Jordan’s notice of appeal
was timely, and this court has jurisdiction to review the conviction.
Admissibility of Kareem Gilbert’s Statement
{¶13} In his first assignment of error, Jordan argues that the trial court
erred in admitting extrinsic evidence of Kareem Gilbert’s prior statement implicating
Jordan in the murder of Davis. But because Jordan did not object to the admission
of the statement, we review the record for plain error. Under the plain-error
standard, we must affirm the conviction unless, but for the allegedly inadmissible
evidence, the outcome of the trial would have been different. See State v. Lukacs,
188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 34 (1st Dist.).
{¶14} Evid.R. 613 provides for the admissibility of a witness’s prior
inconsistent statement for the purpose of impeaching the witness’s credibility. See
State v. Carusone, 1st Dist. No. C-010681, 2003-Ohio-1018. But extrinsic evidence
of the prior statement is admissible only “[w]hen a witness denies making a prior
statement, or states that he is unable to recall the prior statement.” Id. at ¶ 37, citing
State v. Davenport, 1st Dist. No. C-980516, 1999 Ohio App. LEXIS 3469 (July 30,
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OHIO FIRST DISTRICT COURT OF APPEALS
1999); see also State v. Johnson, 10 Ohio App.3d 14, 17, 460 N.E.2d 625 (10th
Dist.1983).
{¶15} Thus, because Gilbert admitted having made the prior statement,
extrinsic evidence of the statement was not admissible. Nonetheless, the trial court
did not commit plain error. In light of the limiting instruction, we must presume
that the jury did not consider the prior statement as substantive evidence. And
because of the other evidence adduced by the state—including eyewitness testimony,
the statement of Jordan, and forensic evidence gathered at the crime scene—we
cannot say that the outcome of the trial would have been different absent the error.
Moreover, as Jordan himself concedes, the state could have properly engaged in a
line-by-line cross-examination of Gilbert with respect to the prior statement, and the
jury would have had been provided the identical evidence. See State v. Hill, 2d Dist.
No. 20028, 2004-Ohio-2048, ¶ 41. Under these circumstances, Jordan was not
deprived of a fair trial, and we overrule the first assignment of error.
Prosecutorial Misconduct
{¶16} In his second, third, and fourth assignments of error, Jordan
claims that he was deprived of a fair trial because of prosecutorial misconduct. We
address these assignments together.
{¶17} The test for prosecutorial misconduct is whether the prosecutor’s
questions or remarks were improper, and, if so, whether they prejudicially affected
the defendant’s substantial rights. State v. Glenn, 1st Dist. No. C-090205, 2011-
Ohio-829, ¶ 52, citing State v. Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984)
and State v. Canyon, 1st Dist. Nos. C-070729, C-070730, and C-070731, 2009-Ohio-
1263, ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Jordan first argues that the assistant prosecutor improperly invited
the jury to consider Gilbert’s prior statement as substantive evidence rather than
mere impeachment.
{¶19} We agree that a number of the assistant prosecutor’s statements
tended to suggest that the jury could consider the prior statement for its truth.
Nonetheless, we must presume that the jury followed the trial court’s instruction that
the prior statement was to be considered only for purposes of impeachment. See
State v. Loza, 71 Ohio St.3d 61, 79, 641 N.E.2d 1082 (1994). Thus, we find no
prejudice to have resulted from the asserted misconduct.
{¶20} Jordan next argues that the assistant prosecutor improperly
vouched for the credibility of Gilbert’s out-of-court statement when he emphasized
his own role in eliciting the statement. In this regard, the assistant prosecutor stated
the following;
I’m not trying to toot my own horn, but you got Detective McGuffey and
Luke and Vaughn and they’re all homicide investigators. And Ms.
Shanahan and myself all part of a plea agreement, as you can see that it
says that. The statement has to be truthful. And as Detective Ballman
told you, a lot of people want to cooperate with us in investigations, and
we have to make an independent determination of whether what they
are saying is true, because we have got a duty, we are officers of the
court, we are here to see that justice is done.
The prosecutor also emphasized that his and the other interrogators’ techniques
were calculated to reveal the truth, and he noted that the plea agreement included
his signature.
{¶21} A prosecutor may elicit testimony that a witness has agreed to tell
the truth as part of a plea agreement. State v. Jackson, 92 Ohio St.3d 436, 448, 751
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N.E.2d 946 (2001). But he may not express his belief or opinion regarding the
credibility of a witness. Id.
{¶22} In this case, the assistant prosecutor went beyond merely eliciting
testimony that Gilbert had agreed to tell the truth. He vouched for the truth of the
prior statement and went so far as to take personal credit for its trustworthiness.
Such comments went beyond the limits of proper argument. Still, because of the trial
court’s admonitions about the prior statement, we cannot say that the comments
deprived Jordan of a fair trial.
{¶23} Finally, Jordan argues that the state engaged in misconduct by
referring to matters not in evidence. Specifically, he argues that the assistant
prosecutor improperly alleged that he and Gilbert had formulated a plot to ensure
that they would both be acquitted of Davis’s murder. In closing argument, the
prosecutor made the following remarks:
Don’t think this was something that had not been thought through.
The whole thing is that they [Jordan and Gilbert] knew there was
going to be a jury somewhere down the road, and this is his clear final
test, his final obstacle is you folks, and we are asking that you not let
him get past justice by a jury trial in this particular case, because when
he is found not guilty, I don’t know whether you have heard, it’s a term
called double jeopardy. And at a later point, if Kareem Gilbert is
charged with Davis’s homicide, there is nothing to prevent Ruben
Jordan from coming in here, another jury months and months from
now and saying, yes, I did do it. Now that would be pretty
monumental, and I don’t know if anybody would believe him, but
double jeopardy prevents him from being tried twice for the same
crime. So again, this is the kind of plan that you don’t know where it’s
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OHIO FIRST DISTRICT COURT OF APPEALS
going to go, but it’s certainly foreseen that type of thing could happen
depending on how this thing goes with you folks.
{¶24} Once again, we find these comments to be inappropriate. A
prosecutor may not express his personal beliefs or opinions regarding the guilt of the
accused and may not refer to matters not supported by admissible evidence. State v.
Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990), citing Smith, 14 Ohio St.3d at
14, 470 N.E.2d 883. Here, the state asked the jury to convict Jordan not on the basis
of the evidence, but to prevent Jordan and Gilbert from playing what the prosecutor
referred to as a “grade-school simplistic trick.” Such collusion on the part of Jordan
and Gilbert was not demonstrated by the record, and the comments therefore went
beyond the limits of proper argument.
{¶25} Nonetheless, Jordan did not object to these comments about
collusion and therefore must demonstrate that, but for the misconduct, the outcome
of the trial would have been different. State v. Rucker, 1st Dist. No. C-110082, 2012-
Ohio-185, ¶ 20, citing State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997).
In this instance, Jordan has not met his burden. As we have already commented,
there was ample evidence to support the conviction, and we cannot say that the
comments deprived Jordan of a fair trial. But we strongly caution the state that, in a
closer case than the one before us now, such comments could very well result in
reversal. But on the basis of the record before us, we overrule the second, third, and
fourth assignments of error.
{¶26} In his fifth assignment of error, Jordan contends that the trial
court erred in failing to provide the jury with a proper limiting instruction
concerning Gilbert’s out-of-court statement. Specifically, he argues that the court
failed to adequately inform the jury that it could consider the statement for
impeachment purposes only and not as substantive evidence. Once again, Jordan
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did not object to the jury instructions, and we therefore review the matter under the
plain-error standard. Crim.R. 30(A); State v. Coley, 93 Ohio St.3d 253, 266, 754
N.E.2d 1129 (2001).
{¶27} We find no plain error. The trial court informed the jury that the
“statement was admitted for the sole purpose of impeaching the witness. The
statement is not testimony and may only be used to evaluate the credibility of the
witness.” This instruction was accurate and fully explained the import of the prior
statement. Although Jordan contends that the instruction was deficient, he
essentially reiterates his argument that extrinsic evidence of the statement was
simply inadmissible. Having already addressed that argument, we need not do so
again. The fifth assignment of error is overruled.
{¶28} Although not separately assigned as error, Jordan makes the
alternative arguments that he was deprived of the effective assistance of trial counsel
and that the trial court erred in overruling his motion for a new trial. We choose to
recast these arguments as the sixth and seventh assignments of error, respectively.
{¶29} To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable performance and that prejudice arose from counsel’s performance.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two
and three of the syllabus.
{¶30} As we have already noted, trial counsel failed to lodge a number of
objections that were warranted. As a result, the jury was presented with an
inadmissible out-of-court statement as well as a number of inappropriate comments
on the part of the assistant prosecutor. But counsel’s lapses did not deprive Jordan
of a fair trial, and we accordingly overrule the sixth assignment of error.
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{¶31} As for the seventh assignment of error, we review the denial of a
motion for a new trial under an abuse-of-discretion standard. State v. Davis, 1st
Dist. No. C-090220, 2010-Ohio-5125, ¶ 41, citing State v. Schiebel, 55 Ohio St.3d 71,
564 N.E.2d 54 (1990). A new trial cannot be granted on the basis of irregularities
that do not affect the substantial rights of the defendant. Glenn, 2011-Ohio 829, at ¶
88.
{¶32} We find no abuse of discretion in the trial court’s denial of the
motion. Although there were irregularities in the proceedings, they did not affect
Jordan’s substantial rights. The evidence produced by the state was such that the
asserted errors cannot be said to have affected the outcome of the proceedings.
Accordingly, we overrule the seventh assignment of error.
Conclusion
{¶33} The judgment of the trial court is affirmed.
Judgment affirmed.
HENDON and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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