State v. LauderdaleState v. Lauderdale
Rendered on February 9, 2024
MEGAN M. PATITUCE and JOSEPH C. PATITUCE, Attorneys for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
WELBAUM, J.
{¶ 1} Appellant, Deleshawn Lauderdale, appeals from his convictions for rape and gross sexual imposition following a jury trial in the Montgomery County Court of Common Pleas. In support of his appeal, Lauderdale contends that his conviction for gross sexual
Facts and Course of Proceedings
{¶ 2} On September 22, 2022, a Montgomery County grand jury returned an indictment charging Lauderdale with one count of rape in violation of
{¶ 3} Lauderdale pled not guilty to the indicted charges and the matter proceeded
Lauderdale‘s Relationship with F.W.
{¶ 4} Lauderdale and F.W.‘s mother (“Mother“) are first cousins. In May 2022, Lauderdale began staying with Mother and her six children at Mother‘s Dayton residence in Montgomery County, Ohio. F.W. is the oldest of Mother‘s six children. F.W. is close in age to Lauderdale and has known Lauderdale all her life. Before the alleged sexual assault, F.W. and Lauderdale were like best friends and spent a lot of time together. However, F.W. denied engaging in any type of sexual activity with Lauderdale before the alleged sexual assault. Lauderdale, on the other hand, claimed that he and F.W. had previously engaged in some flirtations. Specifically, Lauderdale claimed that he had digitally penetrated F.W. and that F.W. had grinded on his private area while they were at a friend‘s house.
The Alleged Sexual Assault
{¶ 5} On the night of May 18, 2022, F.W. slept in Mother‘s bed with her five-year-
{¶ 6} F.W., who fell asleep wearing a tan zipper jacket and jean shorts, woke up in the middle of the night after she had felt someone rubbing between her legs. When she woke up, she noticed that her breast was hanging out of her bra and jacket, which had been unzipped. F.W. then looked around and observed that everyone in the room appeared to be sleeping. Thereafter, F.W. put her breast back inside her bra, zipped up her jacket, and went back to sleep beside her five-year-old brother.
{¶ 7} Later the same night, F.W. woke up a second time as a result of being moved and feeling someone groping her. Specifically, F.W. felt someone grabbing her buttocks area and moving her in a position that left her face-to-face with Lauderdale. When F.W. looked around, she observed that everyone still appeared to be sleeping. F.W. then moved back over by her brother and went to sleep.
{¶ 8} F.W. woke up a third time to find her jean shorts down by her ankles and Lauderdale having sex with her. F.W. specifically testified that Lauderdale had his penis inside her vagina while she was lying on her side with Lauderdale‘s chest facing her back. F.W. also testified that Lauderdale pushed her head down when she looked back at him. F.W. then told Lauderdale that she had to use the bathroom. After urinating, F.W. immediately left the house and walked to the corner of the street, where she called her Mother‘s friend, Mikkel, for help.
{¶ 9} Mikkel picked up F.W. and took her to a friend‘s house. Mikkel was
The Investigation
{¶ 10} After calling the police, Mother also flagged down a police cruiser in the street and advised the officer that a rapist was at her house. The officer immediately went to Mother‘s residence and contacted Lauderdale. The officer was wearing a body camera that captured his interaction with Lauderdale. The first six minutes and seventeen seconds of the body camera recording was admitted into evidence as State‘s Exhibit 21. On the recording, the officer can be seen approaching Lauderdale in Mother‘s garage and asking him: “What‘s going on, man?” In response, Lauderdale told the officer:
[F.W.] woke me up going to bathroom. I turned to the other side. I, uh, ended up waking up grabbing my computer, ok. She saying I touched her uh like physically or whatever I don‘t know.
State‘s Ex. 21.
{¶ 11} For purposes of officer safety, the officer asked Lauderdale if he had any guns or knives; Lauderdale said he had none. The officer then told Lauderdale that he
{¶ 12} Lauderdale‘s interview with the detectives was video recorded and admitted into evidence as State‘s Exhibit 25. During the interview, Lauderdale confirmed that he and F.W. were each other‘s favorite cousin. Lauderdale also confirmed that he and F.W. had been sleeping in the same bed for the past two nights. However, Lauderdale initially denied engaging in any type of sexual activity with F.W.
{¶ 13} After Lauderdale denied engaging in sexual activity with F.W., the detectives advised Lauderdale that DNA testing would be performed during the investigation. The detectives explained to Lauderdale that the DNA testing could prove that something had happened between him and F.W. and that it would be better if Lauderdale just told them what had happened. Lauderdale continued to claim that he never had sex with F.W. and voluntarily gave his DNA sample for testing.
{¶ 14} After obtaining Lauderdale‘s DNA sample, the detectives began to use an investigative tactic whereby they minimized the situation. For example, the detectives suggested that F.W. had probably come on to Lauderdale and that Lauderdale was too
{¶ 15} While the investigation was pending, Mother took F.W. to Dayton Children‘s Hospital to be examined. Before F.W. was examined, a social worker at the hospital spoke with F.W. to assess her physical and medical needs. Based on that conversation, the social worker recommended that F.W. undergo a sexual assault nurse examination (“SANE exam“). The social worker testified that F.W. had a very quiet, sad, and solemn demeanor during their conversation.
{¶ 16} After F.W. spoke with the social worker, a SANE nurse examined F.W. During the examination, the SANE nurse photographed F.W.‘s genitals and took swabs of F.W.‘s mouth, tongue, fingernails, vagina, and anus. The nurse also swabbed an area of F.W.‘s hand where F.W. claimed that Lauderdale had kissed or licked her. The swabs were sent to the Ohio Bureau of Criminal Investigation (“BCI“) for analysis.
{¶ 17} A forensic DNA analyst from BCI analyzed F.W.‘s vaginal swabs and determined that the swabs tested positive for semen. The analyst also determined that there were two DNA contributors on the vaginal swabs. The first DNA contributor was F.W., which was expected since the swabs were taken from F.W.‘s vagina. The second DNA contributor, i.e., the sperm cell contributor, was Lauderdale. Accordingly, the DNA
{¶ 18} Later in the investigation, Mother advised the investigating detectives that she had a security camera in her bedroom that constantly detects motion. Mother told the detectives that she had noticed the camera had been unplugged for a five-hour period on the day of the sexual assault. Mother provided the detectives with a screenshot video of the cell phone application that was connected to the security camera in question. The screenshot video showed that the camera did not detect any motion between 6:18 a.m. and 11:24 a.m. on May 19, 2022. Mother testified that 6:18 a.m. was right after she had left for nursing school. Mother also testified that she did not keep the camera pointed toward her bed, but toward the ceiling. The screenshot video was admitted into evidence as State‘s Exhibit 20.
{¶ 19} Mother also gave the investigating detectives consent to search F.W.‘s cell phone. After receiving said consent, the lead detective asked a digital forensic examiner from the Montgomery County Sheriff‘s Office to extract data from F.W.‘s phone. The extracted data established that Lauderdale and F.W. had exchanged text messages over Instagram on the afternoon of May 19, 2022. F.W. testified that she had received the messages from Lauderdale while she was at her mother‘s friend‘s house. The messages were admitted into evidence as State‘s Exhibit 23 and stated, in relevant part, the following:
| 5/19/2022 11:55:05 AM | -Lauderdale: | [A]ye what u talking bout? |
| 5/19/2022 11:55:51 AM | -F.W.: | [You know] what you did there is no reason to lie now |
| 5/19/2022 11:56:34 AM | -Lauderdale: | [L]ie about what. [All i know] is yo cousin |
| 5/19/2022 11:57:35 AM | -Lauderdale: | [T]he only time i touched u THROUGHOUT the night was to put eli closer to u lil bru kept tryna get in my lil cover. |
| 5/19/2022 11:57:36 AM | -F.W.: | Listen stop tryna play stupid [please] ain‘t [nobody] gone lie like that |
| 5/19/2022 11:58:19 AM | -Lauderdale: | [S]tupid on what im geuniley (sic) confused u woke me going to the bathroom/ |
State‘s Ex. 23.
Heckling by Lauderdale‘s Mother and F.W.‘s Emotional Outburst at Trial
{¶ 20} After Mother testified at trial, Lauderdale‘s counsel advised the trial court that there had been a “pretty big reaction” in the gallery that was noticed by some of the jurors. Trial Tr. Vol. I, p. 131. Lauderdale‘s counsel suggested that, once the jury left the courtroom, the judge should remind the gallery not to react to the testimony. The record does not indicate whether the judge gave any such instruction to the gallery.
{¶ 21} The record thereafter indicates that during F.W.‘s cross-examination, a member of the gallery, later identified as Lauderdale‘s mother, began to audibly heckle and make faces, motions, and gestures at F.W. In response, F.W. blurted out: “Yeah, cause I‘m trying to figure out what‘s funny.” Trial Tr. Vol. I, p. 160. Following F.W.‘s outburst, counsel had a sidebar. During the sidebar, the State asked the trial court to eject Lauderdale‘s mother from the courtroom; Lauderdale‘s counsel, on the other hand, requested that Lauderdale‘s mother simply be given an advisement. In response, the
{¶ 22} After making the advisement, Lauderdale‘s counsel continued to cross-examine F.W. During the continued cross-examination, Lauderdale‘s counsel asked F.W. if she was embarrassed about having sex with her cousin. The State objected to the question and the objection was sustained. F.W., however, became upset by the question and responded as follows:
F.W.: What. Are you serious?
THE COURT: Order.
F.W.: Are you serious?
THE COURT: Ma ‘am sit down.
F.W.: Am I embarrassed?
THE COURT: Sit down.
F.W.: I didn‘t have sex with him. He raped me. That‘s what happened.
THE COURT: Ma‘am, sit down.
F.W.: And I don‘t get what‘s funny.
THE COURT: Ma‘am — you just —
F.W.: What‘s funny —
THE COURT: — there‘s no questions.
F.W.: — that your son raped me?
THE BAILIFF: Have a seat.
THE STATE: Ma‘am.
F.W.: No, I‘m not going to have a seat. I‘m angry.
THE BAILIFF: I get it, but you have to.
F.W.: For months —
THE COURT: There‘s no questions.
F.W.: — for months I‘ve been dealing with this.
THE COURT: No questions. Remain silent until there‘s a question.
THE COURT: Let‘s take a recess. * * *
{¶ 23} After the trial court ordered a recess, the jury left the courtroom and the trial court made the following statement on the record:
There was some disruptive behavior, activity during the examination of the witness, [F.W.]. The Court has discussed this situation with counsel off the record. I think the record does reflect that the witness became emotional, vocal, yelled. There may have been some cause of that or partially caused by behavior of a spectator. And the court is concerned about the behavior of that spectator that who I believe is a family member of the Defendant. Of course, in this case related to the complaining witness.
So there would be — been a previous indication by the Court to have to warn her. Defense counsel did that. And then there was some behavior on her part that contributed toward the emotional outburst of the complaining witness. So the Court is going to, during the testimony of [F.W.], which we have some more examination to take place. We‘re going to not admit the spectator so as to not disrupt the proceedings.
I think one has to behave very well during — when in court. Cannot do anything that disrupts the proceedings, impedes the proceedings, inflames a witness, intimidates a witness. To eliminate that potential, we‘re going to have the spectator remain outside the courtroom during the testimony of this witness. Is there anything further that counsel would like to indicate for the record? * * *
Trial Tr. Vol. I., p. 165-166.
{¶ 24} Following the trial court‘s statement, neither party objected to how the trial court handled the matter. The State thereafter conducted a redirect examination of F.W. and called the remainder of its witnesses.
Lauderdale‘s Version of Events
{¶ 25} After the State rested its case, Lauderdale testified in his defense. Regarding the incident in question, Lauderdale testified that he had kissed F.W.‘s neck to her breasts and grabbed her leg. Lauderdale also testified that F.W. had unbuckled her jean shorts and helped him pull them off. Lauderdale testified that F.W. then turned around and allowed him to put his penis inside her vagina while he was lifting one of her legs. Accordingly, Lauderdale claimed that he and F.W. had engaged in consensual
Verdict, Motion for New Trial, and Sentencing
{¶ 26} After the defense rested its case and after closing arguments, the jury deliberated and found Lauderdale guilty as charged in the indictment. Prior to sentencing, Lauderdale filed a
{¶ 27} In response to Lauderdale‘s motion for new trial, the State claimed that it did not receive the medical records at issue until after the jury had reached its verdict. In support of this claim, the State pointed out that the United States Postal Service time stamp on the records was dated January 23, 2023, i.e., four days after trial, and that the records show that they were printed on January 20, 2023, i.e., one day after trial. The State also claimed that it had forwarded the records to Lauderdale immediately after realizing the records had arrived. The State further claimed that the medical records were either immaterial or duplicative of medical records that had been provided to the defense in advance of trial.
{¶ 29} After overruling Lauderdale‘s motion for new trial, the trial court sentenced Lauderdale to a mandatory, indefinite term of four to six years in prison for rape and 18 months in prison for gross sexual imposition. The trial court ordered the two prison terms to run concurrently, for a total indefinite term of four to six years in prison. The trial court also designated Lauderdale a Tier III sex offender.
{¶ 30} Lauderdale now appeals from his conviction, raising five assignments of error for review. For purposes of clarity, we will review the assignments of error out of order.
Fourth Assignment of Error
{¶ 31} Under his fourth assignment of error, Lauderdale contends that his conviction for gross sexual imposition under
{¶ 32} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
{¶ 33} As previously discussed, Lauderdale contends that the State failed to present sufficient evidence establishing that he had committed the offense of gross sexual imposition in violation of
{¶ 34} “Sexual contact” is defined as “any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.”
{¶ 35} “Force” is defined as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{¶ 36} In this case, the parties stipulated that Lauderdale and F.W. were not spouses. F.W. testified that the first time she woke up on the night in question, she had felt someone rubbing between her legs and noticed that her breast was hanging out of her bra and jacket, which had been unzipped. F.W. also testified that she woke up a second time as a result of being moved and feeling someone groping her. On cross-examination, F.W. clarified that she had felt someone grabbing her buttocks area and moving her in a position that had left her face-to-face with Lauderdale. Thereafter, F.W. testified that she woke up a third time to Lauderdale engaging in non-consensual vaginal intercourse with her.
{¶ 37} F.W.‘s testimony regarding the vaginal intercourse pertains to Lauderdale‘s rape conviction, which Lauderdale has not challenged on sufficiency grounds. As previously discussed, Lauderdale is only challenging the sufficiency of the evidence
{¶ 38} ” ‘Circumstantial evidence is the proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning other facts in accordance with the common experience of mankind.’ ” State v. Lambert, 2d Dist. Montgomery No. 28655, 2021-Ohio-17, ¶ 28, quoting State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37. “Circumstantial evidence has the same probative value as direct evidence.” (Citations omitted.) State v. Phifer, 2d Dist. Clark No. 2020-CA-13, 2021-Ohio-521, ¶ 23. “In fact, in some cases, ‘circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence.’ ” Id., quoting State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991).
{¶ 39} Here, the evidence established that the only other individuals in bed with F.W. and Lauderdale were F.W.‘s two younger brothers, who were five and ten years old. The evidence also established that after F.W. put her breast back into her jacket, and after she had felt someone rub between her legs and grope her buttocks, she later woke up to Lauderdale raping her. From this evidence, the jury could have reasonably inferred that Lauderdale was the individual who had removed F.W.‘s breast from her jacket and bra and was the individual who had rubbed between her legs and groped her buttocks.
{¶ 41} For the foregoing reasons, we find that when the evidence is viewed in a light most favorable to the State, a rational factfinder could have concluded beyond a reasonable doubt that all elements of gross sexual imposition were satisfied. Accordingly, Lauderdale‘s conviction for gross sexual imposition was supported by sufficient evidence.
{¶ 42} Lauderdale‘s fourth assignment of error is overruled.
Second Assignment of Error
{¶ 43} Under his second assignment of error, Lauderdale contends that the trial court committed plain error by failing to sua sponte give a curative jury instruction following F.W.‘s emotional outburst at trial. According to Lauderdale, the trial court should have instructed the jury to disregard the disruptive behavior of Lauderdale‘s mother and F.W.‘s subsequent emotional outburst. Lauderdale also claims that the trial court committed plain error by failing to strike the non-responsive statements made by
{¶ 44} The record establishes that Lauderdale‘s trial counsel never requested a curative jury instruction or objected to its omission. Lauderdale‘s trial counsel also never requested that the trial court strike the non-responsive statements made by F.W. during her emotional outburst. As such, we must review the instant assignment of error under a plain error analysis. See State v. Cunningham, 4th Dist. Ross No. 19CA3698, 2021-Ohio-416, ¶ 50 (“the failure to request a curative instruction at trial forfeits all but plain error on appeal“); State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 22 (2d Dist.) (“[o]rdinarily, a failure to bring an error to the attention of the trial court at a time when the court could correct that error constitutes a waiver of all but plain error“), citing State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913 (1990).
{¶ 45}
{¶ 46} In this case, we cannot say that the outcome of Lauderdale‘s trial clearly would have been otherwise had the trial court given a curative jury instruction and/or stricken the non-responsive statements made by F.W. during her emotional outburst. Although F.W.‘s non-responsive statements were emotionally charged, they were consistent with her trial testimony and did not add any new facts that would have changed the outcome of the trial. Although the disruptive conduct of Lauderdale‘s mother and F.W.‘s emotional outburst could have caused jurors to sympathize with F.W., we cannot say that any such sympathy was the tipping point in this case, as the State presented a significant amount of evidence against Lauderdale. For example, the forensic DNA evidence established that Lauderdale‘s semen was present on F.W.‘s vaginal swabs. The evidence also indicated that the security camera in Mother‘s bedroom had been rendered inoperable around the time of the alleged rape. The evidence also established that Lauderdale had lied multiple times to multiple individuals during the investigation. Specifically, Lauderdale‘s recorded interview with the investigating detectives established that Lauderdale changed his story to his having had consensual sex with F.W. only after the detectives deployed their minimization tactics and advised Lauderdale that DNA testing would be performed.
{¶ 47} F.W., on the other hand, made consistent, unwavering allegations of rape against Lauderdale and even confronted Lauderdale about the incident via messages on Instagram. It was also significant that both F.W. and Lauderdale testified that they had been each other‘s favorite cousin and that F.W. had thought of Lauderdale as a best
{¶ 48} Based on all this evidence, it is likely that the jury would have found Lauderdale guilty of the charged offenses even if the trial court had given a curative jury instruction regarding the disruptive behavior of Lauderdale‘s mother and F.W.‘s emotional outburst and even if it had stricken F.W.‘s non-responsive statements. Accordingly, Lauderdale cannot establish that the trial court‘s failure to do so constituted plain error.
{¶ 49} Lauderdale‘s second assignment of error is overruled.
First Assignment of Error
{¶ 50} Under his first assignment of error, Lauderdale contends that his trial counsel provided ineffective assistance by failing to move for a mistrial or, in the alternative, a curative jury instruction, after the jury observed the disruptive behavior of Lauderdale‘s mother and F.W.‘s emotional outburst.
{¶ 51} This court reviews alleged instances of ineffective assistance of trial counsel under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, in order to prevail on an ineffective assistance claim, a defendant must show that his trial
{¶ 52} To establish deficient performance, a defendant must show that his trial counsel‘s performance fell below an objective standard of reasonable representation. Id. at 688. In evaluating counsel‘s performance, a reviewing court “must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “The adequacy of counsel‘s performance must be viewed in light of all of the circumstances surrounding the trial court proceedings.” State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.
{¶ 53} To establish prejudice, a defendant must show that there is “a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. ” ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Bradley at 142, quoting Strickland at 694.
{¶ 54} In reviewing ineffective assistance claims, this court “will not second-guess trial strategy decisions[.]” State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998), citing Strickland at 689, 104 S.Ct. 2052. Therefore, ” ‘trial counsel is allowed wide latitude in formulating trial strategy[.]’ ” State v. Collins, 2d Dist. Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15, quoting State v. Olsen, 2d Dist. Clark No. 2009-CA-110, 2011-Ohio-3420, ¶ 121. “Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).
{¶ 55} In this case, the decision of Lauderdale‘s trial counsel to not request a mistrial or a curative jury instruction was a matter of trial strategy. See State v. Jenkins, 2d Dist. Miami No. 2000-CA-59, 2001 WL 848582, *6 (July 27, 2001) (holding that trial counsel‘s decision not to request a mistrial or curative jury instruction “involved matters of trial tactics, on which trial counsel‘s decisions must be given broad deference“); State v. Zeune, 10th Dist. Franklin No. 10AP-1102, 2011-Ohio-5170, ¶ 37, (“[t]he decision not to request a mistrial is one of trial strategy best left to trial counsel“), citing State v. Seiber, 56 Ohio St.3d 4, 12, 564 N.E.2d 408 (1990). Lauderdale‘s trial counsel may have believed that F.W.‘s outburst made her look less credible in the eyes of the jury and may have wanted the jury to consider the outburst during deliberations. This notion is supported by the fact that Lauderdale‘s trial counsel referenced F.W.‘s outburst during closing argument. Specifically, counsel stated that F.W. “behave[d] badly and poorly on the stand” in response to an “uncomfortable truth[.]” Trial Tr. Vol. II, p. 298. Therefore, counsel‘s decision not to request a mistrial or a curative jury instruction was a tactical one that will not be second-guessed by this court. Because that decision was a matter of trial strategy, it cannot form the basis of an ineffective assistance claim.
{¶ 56} Furthermore, Lauderdale cannot establish that he was prejudiced by his trial
{¶ 57} Lauderdale also cannot establish that he was prejudiced by his trial counsel‘s failure to request a curative jury instruction. Given the significant amount of evidence that was presented against Lauderdale at trial, there is not a reasonable probability that a curative instruction would have changed the jury‘s verdict. Because Lauderdale failed to establish deficient performance and prejudice, his ineffective assistance of counsel claim fails.
{¶ 58} Lauderdale‘s first assignment of error is overruled.
Third Assignment of Error
{¶ 59} Under his third assignment of error, Lauderdale contends that the State committed prosecutorial misconduct when it referenced F.W.‘s outburst during its closing argument.
{¶ 60} “The test for prosecutorial misconduct is whether remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused.” State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300 (2000), citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ” State v. Garrett, 171 Ohio St.3d 139, 2022-Ohio-4218, 216 N.E.3d 569, ¶ 144, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). “Where it is clear beyond a reasonable doubt that a jury would have found the defendant guilty even absent the alleged misconduct, the defendant has not been prejudiced, and his conviction will not be reversed.” State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing State v. Loza, 71 Ohio St.3d 61, 78, 641 N.E.2d 1082 (1994).
{¶ 61} We note that prosecutors are afforded wide latitude in the presentation of their closing arguments. State v. Arrone, 2d Dist. Greene No. 2005-CA-89, 2006-Ohio-4144, ¶ 126; State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). They may comment freely on ” ‘what the evidence has shown and what reasonable inferences may be drawn therefrom.’ ” Lott at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). Accord State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-45, 824 N.E.2d 162, ¶ 19 (2d Dist.). “Both parties * * * may be ‘colorful or creative’ [during closing arguments] but not purely abusive, inflammatory, or purely derogatory.” State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207 N.E.3d 677, ¶ 96, quoting State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988).
{¶ 62} In this case, Lauderdale claims that the State engaged in prosecutorial misconduct during its closing argument when it made the following statements that referenced F.W.‘s emotional outburst on the witness stand:
- “[F.W.] had no idea when her cousin moved in with her just a few days prior to that that she would end up eight months later on a witness stand telling strangers about the worst thing that ever
happened to her. That she would be berated and bullied. That she would have to come to the point where she was yelling because she was adamant about what had happened to her.” Trial Tr. Vol. II, p. 292. - “Unlike this Defendant, her story was the same all the way through * * * And she yelled it from that witness stand when she was so frustrated because she had been repeatedly berated about her story.” Id.
- “And then if that wasn‘t enough, she‘d be forced to shout it because the person she has to make believe—she was being attacked.” Id. at 297.
- “You know, there‘s a term that‘s been thrown around quite a bit lately, gaslighting. I never really quite understood what that meant * * * But it clicked yesterday when [F.W.] was up there screaming about what happened to her because she was being manipulated into believing that her own reality was not what happened, because she was sitting there knowing that she knew what happened and knowing that this Defendant knew what happened. And she just couldn‘t quite understand why she had to scream it.” Id.
{¶ 63} The record establishes that Lauderdale did not object to any of the foregoing comments at trial. As a result, the comments may only be reviewed for plain error. State v. Miller, 2d Dist. Clark No. 2022-CA-58, 2023-Ohio-2508, ¶ 69. “Again, to prevail
{¶ 64} Upon review, we cannot say that it is clear that Lauderdale would not have been convicted absent the comments at issue. As previously discussed, there was a significant amount of evidence presented at trial supporting Lauderdale‘s convictions. Because it is not clear that the outcome of Lauderdale‘s trial would have been different absent the alleged improper comments, the plain error standard has not been satisfied.
{¶ 65} Lauderdale‘s third assignment of error is overruled.
Fifth Assignment of Error
{¶ 66} Under his fifth assignment of error, Lauderdale contends that the trial court erred by overruling his post-verdict motion for new trial without holding a hearing and without reviewing the medical records at issue in the motion.
{¶ 67}
{¶ 68} “The defendant is entitled to an evidentiary hearing [on a motion for new trial] when the allegations in the motion demonstrate substantive grounds for relief.” (Citation omitted.) State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 28. Whether an evidentiary hearing is warranted is within the sound discretion of the trial court. State v. Moore, 2d Dist. Clark No. 2017-CA-49, 2018-Ohio-318, ¶ 14. Accordingly, we review a trial court‘s decision on a
{¶ 69} “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “A decision is unreasonable if there is no sound reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is arbitrary if it is made ’ “without consideration of or regard for facts [or] circumstances.” ’ ” State v. Hill, 171 Ohio St.3d 524, 2022-Ohio-4544, 218 N.E.3d 891, ¶ 9, quoting State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black‘s Law Dictionary 125 (10th Ed.2014). “A decision is unconscionable if it ‘affronts the sense of justice, decency, or reasonableness.’ ” Statev. Harris, 2023-Ohio-3994, __ N.E.3d __, ¶ 72 (10th Dist.), quoting Fernando v. Fernando, 2017-Ohio-9323, 102 N.E.3d 657, ¶ 7 (10th Dist.).
{¶ 70} We note that Lauderdale references Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in his appellate brief even though his motion for new trial did not allege a Brady violation. This is pertinent because when a Brady violation is alleged within the framework of a
{¶ 71} As previously discussed, Lauderdale‘s motion for new trial was based on newly discovered medical records pertaining to F.W. There is no dispute that the State provided the medical records at issue to the defense two and a half weeks after Lauderdale‘s trial. The trial court overruled Lauderdale‘s motion for new trial without a hearing on grounds that the medical records were not “relevant or material to the issues at trial.” Trial Tr. Vol. II, p. 327. The trial court also found that the State had provided all relevant and material medical records to the defense prior to trial.
{¶ 72} Lauderdale contends that the trial court‘s decision overruling his motion for new trial was an abuse of discretion because the trial court did not hold a hearing on his motion or review the medical records in question. The record establishes that, when
{¶ 73} Lauderdale‘s fifth assignment of error is overruled.
Conclusion
{¶ 74} Having overruled all assignments of error raised by Lauderdale, the judgment of the trial court is affirmed.
LEWIS, J. and HUFFMAN, J., concur.