State v. Serrano

[Cite as State v. Serrano, 2016-Ohio-4691.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 102583

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

RAYMOND SERRANO
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585944-A

BEFORE: Keough, P.J., Boyle, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: June 30, 2016
ATTORNEY FOR APPELLANT

John T. Castele
Rockefeller Building, Suite 1310
614 W. Superior Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kelly N. Mason
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

{¶1} Defendant-appellant, Raymond Serrano, appeals his convictions. For the

reasons that follow, we affirm.

{¶2} On June 13, 2014, Serrano was named in a seven-count indictment charging

him with felonious assault with one- and three-year firearm specifications, notice of prior

conviction, and repeat violent offender specification (Count 1); discharge of a firearm on

or near prohibited premises with attendant one- and three-year firearm specifications

(Count 2); carrying a concealed weapon (Count 3); improperly handling firearms in a

motor vehicle (Count 4); two counts of having weapons while under disability (Counts 5

and 6); and intimidation of crime victim or witness (Count 7). Serrano elected to

bifurcate and try to the bench the notice of prior conviction and repeat violent offender

specification attendant to Count 1, and Counts 5 and 6, having weapons while under

disability. The remaining counts were tried to a jury where the following evidence was

presented.

{¶3} On May 22, 2014, Patricia Russo was seated in her vehicle in the area of W.

48th Street and Kouba Avenue reviewing her car manual when she noticed a dark-colored

full-size truck next to her vehicle. She noticed a man with a gun in his hand, get out of

the truck, walk around the truck, and fire the weapon across the field. Russo then

noticed a man with a bicycle and dog in the middle of the field get up off the ground, and

run away. The man with the gun got back into the truck and drove off. According to
Russo, the events happened very quickly and she did not hear the shooter say anything,

but she admitted that her windows to her vehicle were rolled up.

{¶4} Russo called 911 and reported the shooting. Her call was played before the

jury. Russo was able to describe the shooter’s truck and give a partial license plate

number. She further described the shooter as a black male with facial hair, wearing a

blue or black baseball-style coat displaying an “R” name — “like Ronnie or something”

— where the name would appear on the coat. She told the dispatcher that she saw the

gun and it had a camouflage-type design.

{¶5} Wellington Wilson testified he has known Serrano from the neighborhood

since he was younger and they used to be good friends. However, a year prior to the

May 22 shooting, he and Serrano got into an altercation where Serrano punched him,

stomped on his bicycle, and brandished a firearm. When the police investigated and

questioned Serrano, no firearm was discovered. After this altercation, another incident

occurred where Serrano brandished a firearm. After these incidents, Wilson obtained a

no-contact order against Serrano.

{¶6} Wilson testified that on May 22, 2014, he was riding his bicycle while

walking his dog when he saw Serrano’s black Dodge Ram truck in the area. As Wilson

was riding back from the store, he saw Serrano’s truck back out of a driveway.

According to Wilson, Serrano’s truck engine revved up, and Wilson believed that Serrano

was attempting to catch up with him. Wilson planned on cutting through a field to flee

from Serrano. As he was in the middle of the field, he saw Serrano’s truck stop by the
field, and he heard Serrano yell, “[W]here you going, bitch?” As Wilson looked back, he

saw Serrano point and shoot a gun in his direction. Wilson quickly rode off and called

the police.

{¶7} The jury heard Wilson’s 911 call. During the call, Wilson identified the

shooter as “Raymond Ramos.” He described the shooter as an Hispanic male, wearing a

black sweater and blue jeans, who lived on W. 52nd Street and who drove a Dodge Ram

pickup. He told dispatch that he knew the shooter, they grew up together, and he had

obtained a no-contact order against the shooter because the shooter had pulled a gun on

him twice in the past. Wilson explained to the jury that although he said “Ramos” to

dispatch he meant “Serranos,” and he was 100 percent positive the person in the truck

who shot at him was Serrano. He identified Serrano in court as the shooter.

{¶8} Wilson told the jury about a subsequent incident that occurred on June 5,

2014, after Serrano was arrested but prior to indictment. On that day, Serrano was seen

riding his motorcycle back and forth in front of Wilson’s house. According to Wilson,

Serrano pulled up in front of Wilson’s house and was pointing toward Wilson. Wilson

testified that he felt threatened and harassed because Serrano was not supposed to be on

his street due to the no-contact order.

{¶9} Wilson also testified about incidents that occurred after Serrano was indicted.

He stated that Serrano drove up next to him and stated, “Oh, you ain’t gonna make it in

court.” Wilson testified that he took this statement to mean that he would be dead —
“I’m not going to make it to court.” Wilson also told the jury that after court one day, he

believed that Serrano tried to run him over.

{¶10} Cleveland police officer, Kevin McLain, testified that on May 22, 2014, he

was working basic patrol with his partner, officer Kevin Walsh, when they received a

radio call for a male who was shot at in the area of W. 48th Street and Kouba Avenue.

When they responded, they located Wilson and received information that the suspect’s

last name was “Serrano,” and about the vehicle the suspect was driving, and the address

where the suspect resided. No shell casings were located or recovered.

{¶11} Officer Walsh testified that he interviewed Russo, who stated that she could

identify the shooter. He further testified that he received a call that another police unit

had located the truck parked a few streets over in front of the residence where the truck

was registered. When no one answer the door to that residence, the truck was towed for

investigation.

{¶12} Detective John Kubas testified that he was assigned to investigate the

shooting. He stated that based on the initial investigation and the subsequent interviews

he conducted with Wilson and Russo, he issued an arrest warrant for Serrano. Detective

Kubas testified that the truck that was towed was registered to Serrano’s brother, Hermes

Serrano. He also stated that the truck was processed and no evidence in connection with

the investigation or case was discovered. He testified that on June 5, he received a report

of intimidation of a crime victim that Wilson made against Serrano. A few weeks later,

another report was received regarding intimidation.
 {¶13} Following the state’s case, Serrano moved for a Crim.R. 29 acquittal on

Counts 2, 3, and 7. After a concession by the state, the trial court only granted Serrano’s

Crim.R. 29 acquittal on Count 2, discharging a firearm on or near prohibited premises.

{¶14} Serrano testified in his defense. He stated that he had known Wilson for

over 30 years. He agreed with Wilson that they were friends until a July 4, 2013

altercation at Serrano’s home, where Wilson disrespected Serrano’s mother and Wilson

was told to leave. Instead of leaving, Wilson attempted to punch Serrano, which caused

Serrano to fight back and, as a result, Wilson was injured. However, Serrano denied

stepping on Wilson’s bike or brandishing a weapon during or after the altercation.

Serrano admitted that the police came to his home after Wilson made a report and

searched the premises and his brother’s truck, but said the police did not discover

anything.

{¶15} Serrano further denied any involvement with the incident that occurred on

May 22, 2014. He denied seeing Wilson, pulling a gun on Wilson, or firing a weapon at

Wilson. He did not know that a warrant was issued for his arrest on the charge of

felonious assault until he went to the police station to recover his brother’s truck that had

been impounded.

{¶16} Serrano testified that he did not know that a no-contact order was in place

until he came to court for the pending charges and was advised by the court. He denied

ever violating the no-contact order. Specifically, he denied threatening Wilson in June,

threatening Wilson with a knife, or trying to strike Wilson with his car.
 {¶17} On cross-examination, Serrano admitted that his brother owned the truck

involved, and that the truck and the other vehicles he had access to were registered to the

address where Serrano lived. He further admitted that the disagreement in July 2013 was

initially over drugs. Also on cross-examination, Serrano denied ever owning or using a

gun — “never owned a gun in my life” (tr. 339); “never used a gun in my life.” (Tr.

339.)

{¶18} These responses prompted the state to request a sidebar with the court.

After a sidebar discussion about Serrano’s 1992 conviction for felonious assault with a

firearm and over defense counsel’s doubt to admissibility, the state then proceeded to

question Serrano about this stale conviction. Serrano did not deny the conviction, but

denied the characterization of the conviction. He explained he had been accused of

being involved in a shooting and, although he pled guilty to felonious assault with a

weapon, he never used a weapon; he “just copped to [the charge].” (Tr. 346.)

{¶19} The trial court denied Serrano’s renewed Crim.R. 29 motion for acquittal.

The jury found Serrano guilty of felonious assault with both one- and three-year firearm

specifications, and the court found Serrano guilty of the attendant notice of prior

conviction and repeat violent offender specifications. The jury also returned guilty

verdicts on Count 3, carrying a concealed weapon, Count 4, improperly handling a

firearm in a motor vehicle, and Count 7, intimidation of a crime victim or witness. The

court found Serrano guilty of Counts 5 and 6, having a weapon while under disability.
 {¶20} Serrano was sentenced to a total prison term of six years — three years on

the firearm specification in Count 1 to be served consecutive and prior to three years on

the underlying felonious assault charge. After merging Counts 3, 5, and 6, the state

elected that Serrano be sentenced on Count 5. The trial court imposed a one-year

sentence on Counts 4, 5, and 7 to run concurrent with each other and to the six-year

sentence imposed on Count 1.

{¶21} Serrano appeals, raising five assignments of error, which will be addressed

out of order.

Improper Character Evidence

{¶22} Serrano testified in his defense. During cross-examination, the state

questioned him about any prior gun ownership or use. Serrano denied ever owning a gun

or using a gun. Later in the trial at sidebar, the state indicated to the court that it wanted

to question Serrano further about his denial of owning or using a firearm. Specifically,

the state wanted to “impeach” Serrano by asking him about a 1992 conviction for

felonious assault, which involved a firearm. Defense counsel interjected and questioned

whether the prior conviction could be used in this circumstance because he did not know

the factual basis behind the conviction. Nevertheless, the court allowed the state to

question Serrano about the 1992 conviction “since it directly contradicts his testimony.”

(Tr. 345.)

{¶23} In his first assignment of error, Serrano contends that he was denied his

right to a fair trial by the introduction of his prior 1992 conviction for felonious assault
with a weapon because it was improper character evidence. The state contends,

however, that Serrano opened the door, allowing the state to impeach him about his use of

guns, or in the alternative, the state used his prior conviction to impeach him under

Evid.R. 609(A)(2) or 616(C).

{¶24} We find that defense counsel’s interjection and questioning of the use of the

conviction preserved the argument for appeal. Therefore, this assignment of error will be

reviewed for an abuse of discretion. A trial court has broad discretion concerning the

admission of evidence; in the absence of an abuse of discretion that materially prejudices

a defendant, a reviewing court generally will not reverse an evidentiary ruling. State v.

Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162, ¶ 25 (10th Dist.),

citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). “[A] trial court is

vested with broad discretion in determining the admissibility of evidence in any particular

case, so long as such discretion is exercised in line with the rules of procedure and

evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). A

trial court abuses its discretion when its judgment is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶25} On appeal, Serrano contends that the trial court abused its discretion in

allowing the state to question him on the 1992 felonious assault conviction because he did

not put his character at issue during his direct testimony, thus violating Evid.R. 404. The

state argues that Serrano opened the door, allowing the state to impeach him because
during his direct testimony it was implied that he never owned or used a gun. The state

contends this implication arose when Serrano denied Wilson’s accusations and testified

that the police did not recover a gun after the July 4, 2013 altercation. According to the

state, Serrano’s answers during direct allowed it to inquire further about Serrano’s use

and ownership of guns. We disagree.

{¶26} Although evidence about a person’s character is generally inadmissible,

“[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to

rebut the same is admissible.” Evid.R. 404(A)(1). In other words, a court will not find

error “when the defense opens the door to otherwise inadmissible evidence.” State v.

Davis, 195 Ohio App.3d 123, 2011-Ohio-2387, 958 N.E.2d 1260, ¶ 26 (8th Dist.).

{¶27} Contrary to the state’s assertion, Serrano did not “open the door.” At no time

did he put his character at issue during direct examination that would have allowed the

state to question him about a prior stale conviction. Serrano did not provide any

evidence of a “pertinent trait of character” that the state could attempt to rebut with

questions about his prior conviction. Therefore, the testimony was not admissible under

Evid.R. 404(A).

{¶28} Although not admissible under Evid.R. 404(A), the state contends that the

use of the prior conviction was for impeachment purposes, not as substantive character

evidence. Therefore, the state contends that the 1992 prior felonious assault conviction

was admissible under Evid.R. 609 or 616(C).
 {¶29} Evid.R. 609 governs the impeachment of a witness’s credibility through the

admission of evidence pertaining to a prior criminal conviction. The rule provides, in

relevant part:

(A) General Rule. For the purposes of attacking the credibility of a
witness:

(2) * * * [E]vidence that the accused has been convicted of a crime is

admissible if the crime was punishable by death or imprisonment in excess

of one year pursuant to the law under which the accused was convicted and

if the court determines that the probative value of the evidence outweighs

the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.

{¶30} However, evidence of a conviction under this rule is not admissible if a

period of more than ten years has elapsed since the latter of the date of conviction or

completion of sentence. Evid.R. 609(B). There is an exception to this ten-year

exclusion rule — the trial court must determine, in the interest of justice, that the

probative value of the conviction supported by specific facts and circumstances

substantially outweighs its prejudicial effect, and the proponent gives the adverse party

written notice of its intent to use the evidence. Id. See also State v. Triplett, 8th Dist.

Cuyahoga No. 97522, 2012-Ohio-3804, ¶ 38, citing State v. Shepherd, 8th Dist. Cuyahoga

No. 81926, 2003-Ohio-3356, ¶ 23 (if a conviction is more than ten years old, Evid.R.

609(B) requires a trial court to set forth “specific facts” on the record that reflect the facts

and circumstances justifying the admission of the “stale” conviction).
 {¶31} In this case, Serrano was convicted in 1992 of felonious assault with use of

a firearm. The state concedes on appeal that Serrano’s conviction is outside the time

frame and would not normally be admissible. However, the state contends the prior

conviction was admissible because it was used “to impeach” Serrano while he was on the

witness stand and not as substantive evidence.

{¶32} As noted by this court and other appellate districts,

“[Evidence] Rule 609 applies only when a prior conviction is offered to
impeach a witness by showing character for untruthfulness. If the evidence
is offered under an impeachment theory other than character, Rule 609 does
not apply. Similarly, if evidence of prior conviction is offered for reasons
other than impeachment, Rule 609 does not apply. 1 Giannelli & Snyder,
Evidence (2007) 458, Section 609.3.

Evidence of an accused’s prior conviction may be admitted to prove such
things as an element of an offense; a witness’[s] bias; or motive,
opportunity, or intent, as set forth in Evid.R. 404(B). Id. Evidence of a
prior conviction may also be admitted for purposes of rebuttal. Id. at 459.
When evidence of a prior conviction is admitted for these purposes, the
requirements of Evid.R. 609 do not apply. See id. at 458-459.

State v. Herron, 8th Dist. Cuyahoga No. 99110, 2013-Ohio-3139, ¶ 19, quoting State v.

Kraus, 12th Dist. Warren No. CA2006-10-114, 2007-Ohio-6027, ¶ 74-75; see also State

v. Shearer, 11th Dist. Lake No. 2011-L-007, 2011-Ohio-6835, ¶ 35. Furthermore,

evidence of prior convictions is always admissible to show perjured testimony of the

defendant regarding the existence or nature of prior convictions. United States v. Babbit,

683 F.2d 21, 25 (1st Cir.1982).

{¶33} Evid.R. 609 is used to impeach a defendant’s credibility in general. State v.

Eldridge, 12th Dist. Brown No. CA2002-10-021, 2003-Ohio-7002, ¶ 50. Therefore,
Evid.R. 609 was not intended to apply where evidence of a prior conviction is offered to

rebut specific statements of a defendant who testifies at trial. Dixon v. Barrett, E.D.

Mich. No. 2:11-CV-10816, 2012 U.S. Dist. LEXIS 188128 (Nov. 21, 2012), citing

People v. Taylor, 422 Mich. 407, 373 N.W.2d 579 (1985) (analyzing comparable Mich.

Evid.R. 609), see also United States v. Johnson, 542 F.2d 230, 234-235 (5th Cir.1976)

(analyzing comparable Fed.R.Evid. 609).

{¶34} In State v. Billings, 103 Ohio App.3d 343, 346, 659 N.E.2d 799 (8th

Dist.1995), this court affirmed the admission of an otherwise inadmissible misdemeanor

conviction under Evid.R. 609, reasoning that it was admitted “not to impeach the

defendant’s credibility by showing conviction of a misdemeanor, but rather to

demonstrate the defendant was not truthful about a specific incident involving the

domestic violence issue.” Id. at 346

{¶35} In this case and like Billings, the trial court did not allow the state to

question Serrano on his prior conviction in contravention of Evid.R. 609; thus Evid.R.

609 does not apply. Instead, the court expressly permitted the questioning on the

impeachment theory of contradiction — the state was rebutting Serrano’s claim that he

never owned or used a gun in his life. Therefore, because the trial court allowed the

prior conviction for reasons other than character, the time limitations and other

restrictions under Evid.R. 609 do not apply. Shearer at ¶ 37 (since the entire rule only

refers to impeachment of a witness’s credibility, division (B) cannot be invoked when the

introduction of the prior conviction evidence is for another purpose).
 {¶36} There are two methods of impeachment by contradiction — self

contradiction under Evid.R. 613 and specific contradiction pursuant to Evid.R. 616.

Pursuant to Evid.R. 613(C), prior inconsistent conduct, the rule allows that “[d]uring

examination of a witness, conduct of the witness inconsistent with the witness’s testimony

may be shown to impeach.” Under Evid.R. 616(C), specific contradiction, “facts

contradicting a witness’s testimony may be shown for the purpose of impeaching the

witness’s testimony.” Under both of these rules, limitations exist on the use of extrinsic

evidence when the facts or conduct are offered solely for impeaching a witness’s

testimony.

{¶37} In this case, because Serrano was testifying on the witness stand during

cross-examination when the state questioned him about the prior conviction, extrinsic

evidence was not used. Furthermore, whether the state’s questioning was on a material

or collateral matter is of no consequence. “The common law rule does not prohibit a

party from cross-examining on a ‘collateral matter.’” Staff Notes to Evid.R. 616.

{¶38} We find the trial court did not abuse its discretion when it allowed the state

to rebut Serrano’s prior testimony with the use of his prior conviction. The 1992

conviction of felonious assault with a firearm contradicted Serrano’s prior testimony that

he never used a firearm. This contradiction was admissible under either Evid.R. 613(C)

or 616(C). As the state correctly pointed out, had Serrano admitted he had used a gun in

the past, his prior conviction would not have been admissible, and the state would have

been precluded from any further inquiry about the facts surrounding the prior gun use.
However, because he denied ever using a gun, the state was able to use an otherwise

inadmissible prior conviction to impeach a specific aspect of Serrano’s testimony.

{¶39} Accordingly, the trial court did not abuse its discretion in allowing the state

to question Serrano about his 1992 felonious assault conviction. Serrano’s first

assignment of error is overruled.

Sufficiency of the Evidence

{¶40} In his third assignment of error, Serrano contends that insufficient evidence

was presented to support his conviction for intimidation of a victim in a criminal case as

charged in Count 7.

{¶41} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test

for sufficiency requires a determination of whether the prosecution met its burden of

production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

12. 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 the 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. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶42} In this case, Serrano only makes a sufficiency challenge to his conviction for

intimidation of a victim in a criminal case, in violation of R.C. 2921.04(B)(1). Serrano
contends that no evidence was presented that he used force or an unlawful threat of harm

to intimidate Wilson on June 5, 2014. Specifically, he argues that Wilson only testified

that he felt harassed.

{¶43} R.C. 2921.04(B)(1) provides, in relevant part, that “[n]o person, knowingly

and by force or by unlawful threat of harm to any person or property or by unlawful threat

to commit any offense * * * against any person, shall attempt to influence, intimidate, or

hinder * * * the victim of a crime * * * in the filing or prosecution of criminal charges.”

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.”

R.C. 2901.22(B).

{¶44} At the outset, we note that R.C. 2921.04(B) requires only an attempt to

influence, intimidate, or hinder. “[T]he defendant need only try to create fear about or

try to influence or hinder the filing or prosecution of criminal charges.” State v.

Thompson, 7th Dist. Columbiana No. 13 CO 20, 2014-Ohio-1225, ¶ 16, citing R.C.

2921.04(B). There is no requirement that the victim actually feel intimidated.

Thompson at id., citing State v. Williams, 8th Dist. Cuyahoga No. 94261, 2011-Ohio-591,

¶ 14 (“[n]othing in the statute requires the victim to even know that the defendant

attempted to intimidate the witness”).

{¶45} Accordingly, the state was only required to show that on or about June 5,

2014, Serrano knowingly by force or unlawful threat of harm to the victim or by unlawful
threat to commit any offense to the victim, attempted to influence, intimidate, or hinder

Wilson, not that he actually achieved that result.

{¶46} We agree with Serrano that no evidence was presented that Serrano used

force in an attempt to intimidate or influence Wilson in the prosecution of criminal

charges. However, Serrano could be found guilty of intimidation by making an

“unlawful threat of harm” or “unlawful threat to commit any offense” to the victim. The

Ohio Supreme Court has held that an “unlawful threat” must be “more than just a threat,

i.e., more than just a communication to a person that particular negative consequences

will follow should the person not act as the communicator demands.” State v. Cress, 112

Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶ 41. Therefore, “the statutory

language in R.C. 2921.04(B), proscribing intimidation by an ‘unlawful threat of harm,’ is

satisfied only when the very making of the threat is itself unlawful because it violates

established criminal or civil law.” Id. at ¶ 42.

{¶47} In this case, Wilson testified that on June 5, 2014, Serrano repeatedly rode

his motorcycle past Wilson’s home, stopped in front of it while Wilson was outside,

pointed at him, and said things to others about Wilson filing charges against him.

According to Wilson, he felt threatened and harassed because Serrano was not supposed

to be on his street due to a no-contact order that Wilson obtained against Serrano after the

July 4, 2013 assault.

{¶48} Serrano’s disregard for the no-contact order would be a violation of criminal

law; thus, Serrano’s imposing presence and gestures were sufficient to prove that he made
“unlawful threats of harm” to Wilson in an attempt to hinder or intimidate Wilson in

prosecuting the case. Therefore, sufficient evidence existed to support Serrano’s

conviction for intimidation of a crime victim in violation of R.C. 2921.04(B).

{¶49} Accordingly, Serrano’s third assignment of error is overruled.

Manifest Weight of the Evidence

{¶50} In his fourth assignment of error, Serrano contends that his convictions were

against the manifest weight of the evidence.

{¶51} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. A reviewing court “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.”

Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as

against the manifest weight of the evidence only in the most “exceptional case in which

the evidence weighs heavily against the conviction.” Id.

{¶52} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe
their demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies

and resolve them accordingly, “believ[ing] all, part, or none of a witness’s testimony.”

State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶53} In this case, Serrano challenges the manifest weight of his convictions by

contending that the evidence regarding the identity of the shooter was conflicting and

inconsistent. Specifically, Serrano contends that Russo identified the shooter as a black

male (Serrano is Hispanic), Wilson identified the shooter as “Raymond Ramos” during

his 911 call, and there was no evidence linking Serrano to the truck that was identified as

used in the shooting.

{¶54} Russo testified that the shooter was a black male. However, Russo also

testified that the shooter had some facial hair and was wearing a baseball cap. She

further stated that she could not see too much of his skin, only the skin on his hand

because she was staring at his eyes. Serrano admitted that he previously had a beard, but

that it was not thick or covered his entire face. While Russo’s description may be

inconsistent with Serrano’s race, Detective Kubas testified that in his opinion, Serrano at

a distance is darker complected and could be mistaken as a black male. The jury was in

the best position to view Serrano during this testimony and make their own reasonable

conclusions regarding Russo’s description, and take note of any inconsistencies.
 {¶55} Wilson’s misstatement of Serrano’s name does not warrant reversal.

Although Wilson told dispatch that the person who shot at him was “Raymond Ramos,”

Wilson testified that he had known Serrano for over 30 years and was 100 percent

positive that Serrano was the person who shot at him. Wilson’s misstatement to dispatch

could have been attributed to the duress of the situation, a factor the jury could have

reasonably considered.

{¶56} Finally, the lack of physical evidence linking Serrano to the truck used in the

shooting does not warrant reversal under a manifest weight standard. The jury heard

from both Russo and Wilson, whose testimonies were consistent in the description of the

truck that was involved in the shooting. The truck was registered to Serrano’s brother at

the address where Serrano lived. Furthermore, the jury heard that Serrano, rather than

his brother, went to the police station to recover the truck. Russo also testified that the

shooter who exited the truck was wearing a jacket with an “R” name on it. Finally,

Wilson testified and identified Serrano as the shooter who emerged from the truck and

fired the weapon in his direction.

{¶57} Any conflict or inconsistencies in the testimony or evidence regarding the

identity of the shooter were before the jury and we cannot say that the jury lost its way

and created such a manifest miscarriage of justice that convictions involving the shooting

incident on May 22, 2014 must be reversed and a new trial ordered.

{¶58} Serrano also contends that his conviction for intimidation was against the

manifest weight of the evidence because there was no evidence that he used force or
threatened Wilson. As explained previously under Serrano’s third assignment of error,

Wilson testified that he felt threatened and harassed. Furthermore, Wilson did not have

to actually feel threatened, just that Serrano attempted to intimidate him. Serrano’s

conviction for intimidation is not against the manifest weight of the evidence because it

can be concluded that Serrano’s presence on Wilson’s street in front of his home making

gestures toward him was an attempt to intimidate him.

{¶59} Accordingly, Serrano’s assignment of error is overruled.

Effective Assistance of Counsel

{¶60} Serrano contends in his second assignment of error that he was denied

effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S.

Constitution.

{¶61} To establish ineffective assistance of counsel, a defendant must demonstrate

(1) that counsel’s performance fell below an objective standard of reasonable

representation and (2) that he was prejudiced by that performance. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice

is established when the defendant demonstrates “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

{¶62} The failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d
378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court

need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

* * * that course should be followed.” Strickland at id.

{¶63} In this case, Serrano contends that counsel was ineffective for failing to

object to the state’s introduction of his 1992 felonious assault conviction. As previously

discussed in addressing his first assignment of error, defense counsel’s interjection and

questioning at sidebar was sufficient to preserve the objection on appeal. Accordingly,

Serrano’s challenge is without merit.

{¶64} He further contends that his counsel was ineffective for failing to object to

the state’s closing argument when it commented on Serrano’s prior conviction and told

the jury that Russo actually saw Serrano shoot Wilson, which was commenting on

evidence not presented or introduced.

{¶65} Prosecutors are generally “entitled to considerable latitude in opening and

closing arguments.” (Citations omitted.) State v. Whitfield, 2d Dist. Montgomery No.

22432, 2009-Ohio-293, ¶ 12. “A prosecutor may freely comment in closing argument on

what the evidence has shown and what reasonable inferences the prosecutor believes may

be drawn therefrom.” Id., citing State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293

(1990). Prosecutors may also fairly comment on the credibility of witnesses based on the

witnesses’ testimony at trial. State v. Williams, 8th Dist. Cuyahoga No. 90739,
2012-Ohio-1741, ¶ 12. In that regard, courts must review the prosecutor’s statement

within the context of the entire trial, rather than take the comments out of context and

give them their most damaging meaning. Id., citing State v. Hill, 75 Ohio St.3d 195, 204,

661 N.E.2d 1068 (1996).

{¶66} During closing, the state reminded the jury of Serrano’s prior conviction for

felonious assault, indicating that he lied to them.

Then we get to the defendant on the stand, telling you, no, I don’t own
guns. Never used a gun. Never had one.

This is how we know he’s not credible. He lied to you on the stand. In
1992 he pled guilty to firing a gun and injuring someone, felonious assault
with a gun.

Now, we’re not using that — I don’t want you to say because he’s done this
before, he did it in this case. That’s not why we’re using it. That’s to
show he’s not credible. You can’t believe him. He lied to you. He got
up in court and lied to you, I’ve never used a gun. But he’s pled guilty to
it.”

(Tr. 385-386.)

{¶67} Counsel was not ineffective for failing to object to the state’s comment

about Serrano’s prior conviction during closing argument. As previously explained in

addressing Serrano’s first assignment of error, the state’s questioning on Serrano’s prior

conviction was proper impeachment evidence through the use of contradiction.

Therefore, the jury already heard through Serrano’s testimony that he was convicted in

1992 for felonious assault. The jury also heard Serrano’s explanation surrounding the

circumstances of the case and that he “copped out” to the charge. Here, when reviewing

the state’s closing argument as a whole, the state was asking the jury to consider the
character of the witnesses, based upon all of the witnesses’ testimony at trial, in order to

determine their credibility.

{¶68} Moreover, the state in its closing cautioned the jury not to consider the

conviction as substantive evidence, but rather as evidence that he was untruthful during

his testimony. Based on this cautionary instruction by the state, we cannot say that

counsel’s failure to object to the state’s reference fell below an objective standard of

reasonable representation.

{¶69} Serrano also contends that counsel was ineffective for failing to object to the

state’s comments that the eyewitness actually saw Serrano shoot Wilson, which was

commenting on evidence not presented or introduced. Contrary to Serrano’s argument,

the state did not tell the jury that Russo identified Serrano as the shooter, but only that

Russo’s observations and testimony about the shooting corroborated Wilson’s testimony

about the shooting and shooter. Based on the corroboration, the state’s comment that

Russo saw Serrano shoot at Wilson is a reasonable inference that could be drawn from the

evidence presented. Therefore, counsel was not ineffective for failing to object during

the state’s closing.

{¶70} Finally, Serrano contends that the cumulative effect of counsel's errors

denied him a fair trial. Having found no error, Serrano’s cumulative effect argument

must logically fail. Accordingly, Serrano’s second assignment of error is overruled.

Cumulative Effect of Errors
 {¶71} In his fifth assignment of error, Serrano contends that he was deprived of his

right to a fair trial by the cumulative effect of all errors, even if any one of those errors

may be ruled as harmless.

{¶72} The courts recognize that a conviction will be reversed where the

cumulative effect of the errors deprives a defendant of the constitutional right to a fair

trial. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of

the syllabus. In order to find cumulative error, we must find: (1) that multiple errors

were committed at trial, and (2) there is a reasonable probability that the outcome of the

trial would have been different but for the combination of the separately harmless errors.

State v. Viceroy, 8th Dist. Cuyahoga No. 97031, 2012-Ohio-2494, ¶ 21, citing State v.

Clark, 8th Dist. Cuyahoga No. 89371, 2008-Ohio-1404, ¶ 62. In this case, having found

no reversible errors, we summarily overrule this assignment of error.

{¶73} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR