State v. Cunningham

[Cite as State v. Cunningham, 2018-Ohio-663.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-16-1248
L-16-1249
Appellee
Trial Court Nos. CR0201502845
v. CR0201503135

DaMichael Cunningham, Jr. DECISION AND JUDGMENT

Appellant Decided: February 23, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorneys, for appellee.

Sean P. Martin, for appellant.

*****

JENSEN, J.

I. Introduction

{¶ 1} This is a consolidated appeal of judgments of the Lucas County Court of

Common Pleas in case Nos. CR15-2845 and CR15-3135, sentencing appellant,
DaMichael Cunningham, to a total of 17 years and 5 months in prison for possession of

cocaine, having weapons while under disability, illegal use of supplemental nutrition

assistance benefits or WIC program benefits, and felonious assault.

A. Facts and Procedural Background

i. Facts Pertaining to Case No. CR15-2845

{¶ 2} On November 2, 2015, an indictment was filed with the trial court in case

No. CR15-2845, charging appellant with one count of possession of cocaine in violation

of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree, one count of carrying

concealed weapons in violation of R.C. 2923.12(A)(2) and (F), a felony of the fourth

degree, one count of having weapons while under disability in violation of R.C.

2923.13(A)(3), a felony of the third degree, one count of tampering with evidence in

violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree, two counts of

illegal use of supplemental nutrition assistance benefits or WIC program benefits in

violation of R.C. 2913.46(B) and (D), a felony of the fifth degree, and one count of

obstructing official business in violation of R.C. 2921.31(A), a misdemeanor of the

second degree. These charges stemmed from an incident that occurred on July 3, 2015.

On that date, Toledo police conducted a traffic stop involving appellant. During the stop,

appellant fled from the police on foot, and a pursuit ensued. During the pursuit, police

noticed appellant discard several items, which were later retrieved and identified as a

firearm and crack cocaine. Appellant was subsequently apprehended and arrested.

During the arrest, officers seized a bag of marijuana and two Ohio Direction Food

Assistance cards that did not belong to appellant.

2.
 {¶ 3} At his arraignment, appellant pleaded not guilty to the foregoing charges,

and the matter was set for trial. Following pretrial discovery and several continuances,

appellant appeared before the trial court on May 9, 2016, and entered a plea of guilty

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970),

to one count each of possession of cocaine, having weapons while under disability, and

illegal use of supplemental nutrition assistance benefits or WIC benefits. Pursuant to a

written plea agreement, the remaining charges were dismissed by the state.

{¶ 4} Under the terms of the written plea agreement, appellant was eligible to

receive up to 60 months in prison. Further, the written plea agreement, which was signed

by appellant, states that no promises were made to appellant except those contained

within the agreement. The agreement goes on to state those promises as follows: “State

will recommend a Nolle as to Counts 2, 4, 6 and 7 at the time of sentencing. Weapon to

be ordered destroyed.”

{¶ 5} Prior to accepting appellant’s Alford plea, the trial court engaged appellant

in a thorough Crim.R. 11 colloquy. During the colloquy, the trial court reviewed the

potential prison time appellant was facing as a result of his plea. After ensuring that

appellant understood the rights he was waiving by virtue of his Alford plea, the trial court

accepted appellant’s plea and found appellant guilty. Thereafter, the trial court ordered

the preparation of a presentence investigation report and set the matter for sentencing.

{¶ 6} One month later, appellant’s counsel was granted leave to withdraw as

counsel of record. Appellant was then appointed new counsel. One week prior to

sentencing, newly appointed counsel filed a motion to withdraw appellant’s Alford plea,

3.
arguing that appellant and members of his family were assured by previous counsel that

appellant would receive community control in lieu of prison time if he pleaded guilty.

Appellant and his sister testified at a subsequent evidentiary hearing on the motion to

withdraw. Appellant’s sister testified that she had spoken to appellant’s original counsel

prior to the plea hearing and that counsel informed her that appellant would receive a

suspended prison sentence if he accepted the state’s plea offer. At the conclusion of the

evidentiary hearing, the court took the matter under advisement. On September 26, 2016,

the court issued its order denying appellant’s motion to withdraw his plea, finding that

appellant knowingly, intelligently, and voluntarily waived his rights under Crim.R. 11

after consulting with competent counsel and being informed by the trial court of the

potential sentence he faced if convicted of the charged offenses.

{¶ 7} Three days later, appellant appeared before the trial court for sentencing. At

sentencing, appellant was ordered to serve 11 months in prison for possession of cocaine,

30 months in prison for having weapons while under disability, and 11 months in prison

for illegal use of supplemental nutrition assistance benefits or WIC program benefits.

The court ordered that the 11-month sentences be served concurrent to one another, but

consecutive to the 30-month sentence, for a total prison sentence of 41 months. Further,

the court ordered the 41-month sentence to be served consecutively to the sentence

appellant received in case No. CR15-3135. Appellant’s timely appeal followed.

ii. Facts Pertaining to Case No. CR15-3135

{¶ 8} On December 18, 2015, appellant was indicted in case No. CR15-3135. In

the indictment, appellant was charged with one count of murder in violation of R.C.

4.
2903.02(B) and 2929.02, an unspecified felony, and two counts of felonious assault in

violation of R.C. 2903.11(A)(2) and (D), felonies of the second degree, along with

firearm specifications on all three counts. The indictment stemmed from a shooting that

occurred at Spigot Tavern on October 1, 2015, resulting in the death of appellant’s friend,

Keshaun Groom, and injuries to two others, Anthony and Kimberly Henderson.

{¶ 9} On January 20, 2016, appellant entered a plea of not guilty to the

aforementioned charges, and the matter proceeded through discovery. Eight months

later, a jury trial commenced, at which the state called several witnesses.

{¶ 10} As its first witness, the state called Anthony Henderson. Anthony is the

son of the owner of Spigot Tavern. On the evening of October 1, 2015, Anthony went to

Spigot Tavern with his wife, Kimberly, and his son, to watch a football game. According

to Anthony, Spigot Tavern has a no-smoking policy. However, patrons of the bar are

permitted to smoke either on the bar’s patio or outside the entrance.

{¶ 11} As he was watching the football game, Anthony’s friend, Mr. Smith,

noticed Groom smoking inside the bar. Groom and appellant came to the bar together

that evening, along with their friends, Jake Newman and Alan Derrington. Smith

informed Groom that he needed to smoke outside the bar, and provided him with a cup of

water to put out his cigarette. Groom disregarded Smith’s instruction, prompting

Anthony to order Groom to either go out onto the patio to smoke or to smoke outside the

front entrance. According to Anthony’s testimony, Groom initially refused to go outside,

which led to a physical altercation. Ultimately, Groom and Newman were forced out of

the front entrance of the bar and the door was locked behind them. Anthony proceeded to

5.
retrieve a handgun from the office and made his way toward the front of the bar.

Meanwhile, Groom and Newman were attempting to reenter the bar through the locked

entrance.

{¶ 12} After Anthony returned to the front of the bar, appellant began questioning

him as to why he had Groom and Newman removed from the bar. Appellant began

making his way toward the locked entrance. During this time, appellant was “a couple

feet” from the front entrance, within an earshot of Groom and Newman. By now, Groom

had brandished a handgun, and was tapping on a window next to the front entrance with

the handgun and pointing it through the window.

{¶ 13} As appellant was making his way toward the entrance, Kimberly directed

him to exit the bar out of the side door to avoid any further confrontation with Groom.

Video surveillance depicts Kimberly in a discussion with appellant, during which she

points in the direction of the side door. During this discussion, Anthony and Kimberly

informed appellant that Groom had a firearm. Nonetheless, appellant disregarded

Kimberly’s instruction to exit out of the side door, and chose instead to unlock the front

entrance door and exit the bar. As soon as appellant opened the door, Groom entered and

began to shoot at Anthony, who returned fire. Anthony was struck in the thigh with one

gunshot and Kimberly was also grazed by a bullet. Groom was mortally wounded.

Groom was subsequently taken to the hospital where he succumbed to his injuries.

{¶ 14} As its second witness, the state called Kimberly to the stand. Kimberly

generally corroborated Anthony’s testimony. According to Kimberly, appellant indicated

that Groom was his friend prior to exiting the bar. Kimberly then explained to appellant

6.
that Groom had a firearm, and appellant responded that he was “strapped too.”

Immediately thereafter, appellant turned from Kimberly, went to the front entrance,

unlocked it, and exited the bar. According to Kimberly, Groom immediately entered the

bar and began shooting.

{¶ 15} The state’s remaining witnesses consisted of four police officers involved

in the investigation of the incident, as well as the deputy coroner that conducted Groom’s

autopsy. According to the coroner’s report, Groom died from two gunshot wounds.

{¶ 16} At the close of the state’s evidence, defense counsel moved, without

argument, for acquittal pursuant to Crim.R. 29. The court denied counsel’s motion, and

appellant rested without calling any witnesses. Thereafter, the parties presented their

closing arguments. During its closing argument, the state displayed a 2013 case from this

court, State v. Taylor, 6th Dist. Lucas No. L-11-1202, 2013-Ohio-5182, to explain the

concept of proximate cause as it related to the felony murder charge. Defense counsel

immediately objected to the state’s display of the case in front of the jury. A bench

discussion was held, after which the trial court sustained the objection, ordered the state

to remove the case from the jury’s view, and instructed the jury as follows: “Ladies and

gentlemen, you are instructed to disregard the statement that was just made by [the

state].”

{¶ 17} Following closing arguments, the jury received its instructions and began

its deliberations. Thereafter, the jury returned with a verdict of guilty as to the felonious

assault charges, but not guilty as to felony murder and the gun specifications. The trial

court continued the matter for sentencing following the preparation of a presentence

7.
investigation report. At sentencing, the trial court ordered appellant to serve seven years

in prison on each of the two felonious assault charges, to be served consecutively for a

total of 14 years. Further, the court ordered appellant’s 14-year sentence to be served

consecutively with the 41-month sentence imposed in case No. CR15-2845, for a total of

17 years and 5 months. Thereafter, appellant filed a timely notice of appeal.

{¶ 18} On November 15, 2016, approximately two weeks after receiving

appellant’s notices of appeal from case Nos. CR15-2845 and CR15-3135, we sua sponte

ordered the appeals consolidated.

B. Assignments of Error

{¶ 19} On appeal, appellant assigns the following errors for our review:

1) Appellant’s first attorney committed ineffective [assistance of]

counsel by advising the Appellant to plea based on highly incompetent

statements regarding possible outcomes in CR-2015-2845.

2) Trial Court erred by denying Appellant’s motion to withdraw his

Alford plea due to ineffective assistance of counsel of his first attorney [in]

CR-2015-2845.

3) Appellant’s Trial Counsel committed ineffective assistance of

counsel by failing to articulate why the State of Ohio had not met the

burden of proof during the Rule 29(A) Motion in CR-2015-3135.

4) The State of Ohio committed prosecutorial misconduct by

introducing appellate case law and including the citing authority during

closing arguments in CR-2015-3135.

8.
 5) The State of Ohio failed to produce legally sufficient evidence to

sustain convictions for Felonious Assault in CR-2015-3135.

6) Appellant’s convictions of Felonious Assault fell against the

manifest weight of the evidence in CR-2015-3135.

7) Appellant’s Trial Counsel committed ineffective assistance of

counsel by failing to file a Rule 29(C) Motion after the State of Ohio had

not met the burden of proof and the jury returned an improper verdict in

CR-2015-3135.

II. Analysis

A. Ineffective Assistance of Counsel

{¶ 20} In his first assignment of error, appellant argues that his trial counsel was

ineffective in case No. CR15-2845 in advising him as to the likely sentence he would

receive after accepting the state’s plea offer.

{¶ 21} In order to demonstrate ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. In cases in which the defendant enters a guilty plea,

the defendant waives any appealable errors, including a claim of ineffective assistance,

“unless he or she demonstrates that the alleged errors precluded him or her from entering

a knowing, voluntary plea.” See State v. Ellis, 6th Dist. Lucas No. L-15-1296, 2016-

9.
Ohio-8086, ¶ 35, citing State v. Kocian, 6th Dist. Ottawa No. OT-07-018, 2008-Ohio-74;

see also State v. Rice, 6th Dist. Lucas No. L-06-1343, 2007-Ohio-6529, ¶ 17 (“Due to

appellant’s Alford plea, we are limited to an examination of whether appellant’s counsel’s

performance caused his plea to be less than knowing and voluntary.”).

{¶ 22} Here, appellant argues that trial counsel was incompetent in advising him

to enter an Alford plea based upon the assertion that he would receive community control

in lieu of prison upon entering the plea. Appellant further asserts that trial counsel did

not review the plea form nor provide appellant with an opportunity to review it.

{¶ 23} Appellant’s assertions concerning promises that were made to him by his

trial counsel are discredited by a review of the plea colloquy in case No. CR15-2185.

Prior to accepting appellant’s Alford plea, the court questioned appellant as follows:

THE COURT: Your attorney said that you are going to enter a plea

of guilty pursuant to the Supreme Court case of North Carolina versus

Alford to count one in the indictment, which is possession of cocaine, a

felony of the fifth degree, count three in the indictment, which is having

weapons while under disability, a felony of the third degree, and count five

in the indictment, which is illegal use of supplemental nutrition assistance

benefits or WIC program benefits, a felony of the fifth degree. And in

exchange for your plea the State of Ohio will nolle, or dismiss, counts two,

four, six and seven at time of sentencing and the weapon will be destroyed.

Is that your understanding of what you’re doing here today?

THE DEFENDANT: Yes, ma’am.

10.
 THE COURT: Are you satisfied with the amount of time you’ve had

to speak with your attorney about this case?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you satisfied with her advice and counsel?

THE DEFENDANT: Yes, ma’am.

THE COURT: Did anyone force you to enter this plea?

THE DEFENDANT: No, ma’am.

THE COURT: Did anyone promise you anything to get you to enter

this plea?

THE DEFENDANT: No, ma’am.

THE COURT: You’re doing it voluntarily?

THE DEFENDANT: Yes, ma’am.

THE COURT: As I stated, in count one you’re entering a plea to a

felony of the fifth degree. Do you understand that that offense carries a

basic prison term of six to 12 months?

THE DEFENDANT: Yes, ma’am.

***

THE COURT: Now, count three is a felony of the third degree. Do

you understand that that offense carries a basic prison term of nine to 36

months?

THE DEFENDANT: Yes, ma’am.

***

11.
 THE COURT: And count five is a felony of the fifth degree which

carries a basic prison term of six to 12 months. Do you understand that?

THE DEFENDANT: Yes, ma’am.

* **

THE COURT: So as you stand here today you’re facing a total of up

to 60 months in a state institution. Do you understand that?

THE DEFENDANT: Yes, ma’am.

{¶ 24} As is evident from the foregoing discussion, appellant was aware of the

possibility of prison time prior to agreeing to plead guilty. Further, the written plea

agreement reiterates that possibility, informing appellant that he could receive up to 60

months in prison. The court ensured that no promises were made to appellant except

those contained within the agreement. According to the agreement, the state’s only

promise was that it would dismiss counts 2, 4, 6 and 7 of the indictment at the time of

sentencing.

{¶ 25} In light of the thorough colloquy that took place in this case, paired with

the clear terms of the written plea agreement that was signed by appellant, we find that

appellant entered his Alford plea with full awareness that he could be sentenced to prison.

In the final analysis, we find that the incompetence asserted by appellant did not preclude

him from entering a knowing, voluntary plea. Therefore, appellant’s ineffective

assistance claim must fail.

{¶ 26} Accordingly, appellant’s first assignment of error is not well-taken.

12.
 B. Motion to Withdraw Alford Plea

{¶ 27} In his second assignment of error, appellant asserts that the trial court erred

in denying his motion to withdraw his Alford plea.

{¶ 28} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.” A motion made pursuant to Crim.R. 32.1 is left to the sound

discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977),

paragraph two of the syllabus. Thus, we review the trial court’s decision denying

appellant’s motion under an abuse of discretion standard. State v. Francis, 104 Ohio

St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. Abuse of discretion suggests that the

trial court’s decision was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 29} The Ohio Supreme Court has held that “a presentence motion to withdraw

a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527,

584 N.E.2d 715 (1992). Appellate courts evaluate the trial court’s decision based upon

the following considerations:

(1) whether the state will be prejudiced by withdrawal; (2) the

representation afforded to the defendant by counsel; (3) the extent of the

Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

withdraw; (5) whether the trial court gave full and fair consideration to the

motion; (6) whether the timing of the motion was reasonable; (7) the

13.
 reasons for the motion; (8) whether the defendant understood the nature of

the charges and potential sentences; and (9) whether the accused was

perhaps not guilty or had a complete defense to the charge. State v.

Murphy, 176 Ohio App.3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39

(6th Dist.), citing State v. Griffin, 141 Ohio App.3d 551, 554, 752 N.E.2d

310 (7th Dist.2001).

{¶ 30} A change of heart is an insufficient reason to permit withdrawal of the plea.

State v. Williams, 6th Dist. Lucas Nos. L-15-1259, L-15-1260, 2016-Ohio-4905, ¶ 13.

{¶ 31} In this case, appellant contends that the trial court erred in denying his

motion to withdraw his Alford plea because of the alleged ineffective assistance of trial

counsel that we addressed and rejected above. Having found no merit to appellant’s

contention that he was rendered ineffective assistance by his trial counsel, we find that

the trial court did not abuse its discretion in denying appellant’s motion to withdraw his

plea. Our conclusion is supported by an examination of the aforementioned factors.

Specifically, we find that appellant was represented by counsel prior to entering his plea,

and was thoroughly informed of his rights under Crim.R. 11 at the plea hearing.

Moreover, the trial court gave full and fair consideration of the motion, rejecting

appellant’s argument after noting that appellant indicated that he understood the nature of

the charges and the potential prison time he faced at the plea hearing. Finally, appellant

14.
does not offer any argument as to his innocence of the charges to which he pleaded.

Rather, the record supports the inference that appellant simply had a change of heart and

wished to withdraw his plea.

{¶ 32} Under these facts, the trial court’s denial of appellant’s motion to withdraw

his Alford plea does not constitute an abuse of discretion. Accordingly, appellant’s

second assignment of error is not well-taken.

C. Sufficiency, Manifest Weight, and Appellant’s Crim.R. 29 Motion

{¶ 33} In his third assignment of error, appellant argues that his trial counsel in

case No. CR15-3135 provided ineffective assistance in failing to articulate an argument

to support his Crim.R. 29 motion for acquittal. In his fifth and sixth assignments of error,

appellant argues that his convictions for felonious assault were not supported by

sufficient evidence and were against the manifest weight of the evidence, respectively.

Relatedly, appellant argues in his seventh assignment of error that his counsel was

ineffective for failing to move for an acquittal under Crim.R. 29 after the jury returned its

guilty verdict. Because these assignments are interrelated, we will address them together.

{¶ 34} Crim.R. 29 provides for an entry of a judgment of acquittal if the evidence

is insufficient to sustain a conviction. “An appellate court reviews a denial of a Crim.R.

29 motion for acquittal using the same standard that is used to review a sufficiency of the

evidence claim.” State v. Reyes, 6th Dist. Wood No. WD-03-059, 2005-Ohio-2100, ¶ 21,

citing State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995); State v. Jones, 6th

Dist. Lucas No. L-08-1001, 2009-Ohio-6501, ¶ 32.

15.
 {¶ 35} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The

proper analysis under a sufficiency of the evidence standard 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. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 36} When reviewing a manifest weight of the evidence issue, we sit as a

“thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

That is, we review the entire record, weigh the evidence and all reasonable inferences,

and consider the credibility of witnesses. Id. Our role is to determine “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.” Id. We reverse a conviction on manifest weight grounds for only the most

“exceptional case in which the evidence weighs heavily against the conviction.” Id.

{¶ 37} In case No. CR15-3135, appellant was convicted on two counts of

felonious assault in violation of R.C. 2903.11, which provides, in relevant part:

(A) No person shall knowingly do either of the following:

***

(2) Cause or attempt to cause physical harm to another or to

another’s unborn by means of a deadly weapon or dangerous ordnance.

16.
 ***

(D)(1)(a) Whoever violates this section is guilty of felonious assault.

{¶ 38} In this case, Groom was the individual who fired the shots that caused

physical harm to Anthony and Kimberly. Clearly, this act constituted felonious assault.

While appellant did not directly commit felonious assault, he was charged with felonious

assault on a theory of complicity.

{¶ 39} “Under R.C. 2923.03, a person may be an accomplice in an offense and

prosecuted as the principal offender if, among other things, he aids or abets another in

committing the offense while acting with the kind of culpability required for commission

of the offense.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph

two of the syllabus. “To aid is to assist. To abet is to incite or encourage.” State v. Sims,

10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). A person’s mere association

with a principal offender is not an aiding or abetting of the principal's act; there must be

some active participation, assistance, or encouragement by the accomplice. State v.

Nievas, 121 Ohio App.3d 451, 456, 700 N.E.2d 339 (8th Dist.1997). “‘Participation in

criminal intent may be inferred from presence, companionship and conduct before and

after the offense is committed.’” State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796

(2001), quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971).

{¶ 40} The evidence presented by the state in this case reveals that Groom and

appellant came to the Spigot Tavern together on the night of the shooting. After the fight

that preceded the shooting, appellant became upset with Anthony and Kimberly for

removing Groom and his other friend, Newman, from the bar. While arguing with

17.
Anthony and Kimberly, appellant was asked not to exit out of the front entrance, which

was locked at the time, because Groom was outside the door with a firearm. Meanwhile,

Groom was using his handgun to knock on the window that was next to the door and

visible from appellant’s vantage point. Ultimately, appellant disregarded Kimberly’s plea

that he use the side door to exit the bar, opting instead to exit from the front door. By

unlocking the front door, appellant assisted Groom in committing felonious assault, a

result that was entirely avoidable and foreseeable in light of Groom’s conduct outside the

bar.

{¶ 41} Notwithstanding the foregoing evidence, appellant contends that the state

failed to demonstrate that he used a deadly weapon during the commission of the offenses

in question, as evidenced by the jury’s rejection of the firearms specifications contained

in the indictment. This argument is without merit because appellant was convicted of

complicity to commit felonious assault. Given the complicity charge, “the jury was not

required to find that appellant was the person who displayed, brandished, or used a

firearm. It could have found that one of appellant’s cohorts displayed, brandished, or

used a firearm in the commission of the robbery.” State v. Franklin, 7th Dist. Mahoning

No. 06-MA-79, 2008-Ohio-2264, ¶ 99. Groom clearly utilized a firearm during the

commission of the felonious assaults, a fact not disputed by appellant. The use of the

firearm was evidenced by the gunshot wounds received by Anthony and Kimberly.

Therefore, we do not find that the jury’s rejection of the firearms specifications was

inconsistent with its finding of guilt as to the felonious assault charges.

18.
 {¶ 42} Ultimately, we find that the evidence outlined above is sufficient to support

appellant’s convictions for complicity to commit felonious assault. Moreover, we do not

find that this case presents the exceptional case in which the evidence weighs heavily

against the conviction. Consequently, we find that appellant’s convictions were

supported by sufficient evidence and were not against the manifest weight of the

evidence. Because appellant’s convictions were supported by sufficient evidence, we do

not find that counsel’s failure to articulate an argument to support the Crim.R. 29 motion

prejudiced appellant. Likewise, we find that appellant was not prejudiced by counsel’s

failure to raise a Crim.R. 29(C) motion after the jury returned its verdict. Accordingly,

appellant’s third, fifth, sixth, and seventh assignments of error are not well-taken.

D. Prosecutorial Misconduct

{¶ 43} In his fourth assignment of error, appellant argues that the state committed

prosecutorial misconduct when it displayed case law to the jury during closing arguments

in CR15-3135.

{¶ 44} The two fold test for prosecutorial misconduct is whether the prosecutor’s

conduct at trial was improper and whether it prejudicially affected the substantial rights

of the defendant. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). A

prosecutor’s conduct during trial cannot be grounds for error unless the conduct deprives

the defendant of a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394

(1987). Thus, a reversal for prosecutorial misconduct is not warranted unless it is clear

that the outcome of the trial would have been different but for the misconduct. State v.

Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984). In reviewing closing arguments for

19.
prosecutorial misconduct, we view the remarks in the context of the entire closing

argument. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001).

{¶ 45} In support of his prosecutorial misconduct argument, appellant complains

that the state displayed case law in front of the jury and attempted to read a portion of it

prior to being instructed to take it down after the trial court sustained defense counsel’s

objection. Even assuming, arguendo, that the state’s reading of case law to the jury was

improper, appellant cannot demonstrate that it had an affect on the outcome of the

proceedings. The trial court promptly ordered the state not to display the written decision

in front of the jury. Further, the court provided a curative instruction, in which it ordered

the jury to disregard the state’s comments regarding the case law. Finally, and most

importantly, the case that was being discussed by the state explained proximate cause in

the context of a felony murder charge. The fact that appellant was acquitted on the

murder charge makes it clear that the state’s conduct had no prejudicial bearing on

appellant.

{¶ 46} Accordingly, appellant’s fourth assignment of error is not well-taken.

III. Conclusion

{¶ 47} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

20.
 L-16-1248 and L-16-1249
State v. Cunningham, Jr.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.

21.