State v. Andrews

2024 Ohio 5023, 254 N.E.3d 782

Opinion

[Cite as State v. Andrews, 2024-Ohio-5023.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Case No. 22CA28 Plaintiff-Appellee, : : v. : DECISION AND JUDGMENT : ENTRY JAMES R. ANDREWS, : : Defendant-Appellant. : RELEASED: 10/08/2024

APPEARANCES:

L. Scott Petroff, Athens, Ohio, for appellant.

Nicole T. Coil, Washington County Prosecuting Attorney, Marietta, Ohio, for appellee.

Wilkin, J.

{¶1} This is an appeal from a Washington County Court of Common Pleas

judgment entry that convicted appellant, James R. Andrews (“Andrews”), of

bribery in violation of R.C. 2921.02(C), a third-degree felony. On appeal

Andrews maintains that his conviction is against the manifest weight of the

evidence, is not supported by sufficient evidence, and that he suffered prejudice

due to several improper comments the prosecutor made during his closing

argument. After reviewing the parties’ arguments, the record, and the applicable

law, we find Andrews’ conviction is not against the manifest weight of the

evidence, is supported by sufficient evidence, and, with one possible exception,

the prosecutor’s comments were not improper, and Andrews suffered no Washington App. No. 22CA28 2

prejudice from any of the comments. Therefore, we overrule Andrews’ three

assignments of error and affirm the trial court’s judgment of conviction.

BACKGROUND

{¶2} On November 3, 2021, a grand jury charged Andrews with bribery for

corrupting or improperly influencing a witness by offering the witness a valuable

thing or benefit in violation of R.C. 2921.02(C) and (E), a third-degree felony. The

case went to trial. The State presented three witnesses: Sarah Morris, Ariel Dair,

and Derek Tewanger.

{¶3} Andrews and Sarah Morris (“Morris”) had two children and

cohabitated. On September 5, 2021, Andrews was arrested for committing

domestic violence against Morris. Morris testified that the next day she received

a call from Andrews who was in jail. Calls from the jail are recorded, as was the

call between Morris and Andrews.

{¶4} The State then played the audio from that phone call for the jury.

Mr. Andrews: I can’t believe this.

Ms. Morris: Hello.

Mr. Andrews: They put an F -- they put an F4 on me.

Ms. Morris: I don’t want to talk to you. Why are you calling me from Dillon’s account. (Dillion is Morris’ brother.)

Mr. Andrews: It’s not on -- it’s -- did you put a protection order on me? Hello?

Ms. Morris: Yeah. I was thinking about it, yes.

Mr. Andrews: Don’t put no protection order on me. Washington App. No. 22CA28 3

Ms. Morris: You know, my tongue is swollen, because when you hit me, I bit my tongue and it’s swollen. I can’t eat. I can’t swallow. Like, it hurts to talk. You belong where you’re at.

Mr. Andrews: No, I don’t Sarah. I don’t need to spend 2- or $3,000 trying to bail out on an F4. I really wish you’d go, you’d drop the charges. If you want me to go out to my dad’s house or whatever, I’ll go out to my dad’s house. But I need to buy a car, and I’m going to be spending all the money I got in the bank on getting out of here.

Ms. Morris: Now what is your problem?

Mr. Andrews: If you -- if you ever did love me, do that much for me.

Ms. Morris: No. No. Look, don’t be doing that shit. You’re just -- you’re creating this. You’re just -- you’re creating all this crap that you’ve done, and you hit me, and you know what else you did too.

Mr. Andrews: Sarah.

Ms. Morris: Abusive, vulgar -- vulgar language. You --.

Mr. Andrews: If you don’t -- if you don’t want me around anymore, I won’t be around anymore.

Ms. Morris: Oh, bullshit. That -- no, that’s bull. I’m not believing that for a minute.

Mr. Andrews: I’ll get the car. I’ll go up to Dad’s and I’ll just go to work. Get my license, get a car, go to work.

Ms. Morris: Bullshit. No, huh-unh.

Mr. Andrews: Do you want me stuck -- you want me stuck in here, or do you want me being able to provide money for my family?

Ms. Morris: I can provide money for my family. You understand? I’m a grown adult. Washington App. No. 22CA28 4

Mr. Andrews: Yeah, I know you can, Sarah, but children are expensive, and I do love -- I do love --.

Ms. Morris: Okay, love is free, buddy.

Mr. Andrews: -- those children.

Ms. Morris: Love is free to give. Okay. Living here in this apartment --.

Mr. Andrews: Well, I do love you guys, and Sarah --.

Ms. Morris: Bullshit. Sorry, but I have never, ever hit anybody in my entire life. I’ve never hit anyone in my life. Never hit anybody with a fist. Not my family. Nobody I knew, close friendly, you, no.

Mr. Andrews: If you want me to go up to my dad’s –.

Ms. Morris: I have never hit anybody.

Mr. Andrews: -- house and not be around, I’ll go out to my dad’s house and I won’t be around you. Would you please drop these charges on me? They’re going to hit me with an F4 out of it. It’s going to take thousands of dollars to bail out of here, otherwise.

I’ll give you the freakin’ car or something, a cheap one, and buy me another one or something. Just don’t make me spend 2- or $3,000 to bail out of here.

Ms. Morris: You haven’t -- J.R., you haven’t even went to court yet. How you know you’re going to get an F4? Huh?

Mr. Andrews: Because I’ve got the pa – I already got the paperwork on it, and it says F4. And it probably will be like, maybe even three grand to bail out of here. Come on.

Ms. Morris: Well, it’s your fault. It’s your fault. You know, don’t fucking call me and blame me. Because you’re --. Washington App. No. 22CA28 5

Mr. Andrews: I’m not blaming you.

Ms. Morris: — because you’re freaking out --.

Mr. Andrews: — I’m not blaming you. I’m just --.

Ms. Morris: — and you want beer and you want cigarettes. No No.

Mr. Andrews: I’m not freaking out. I’m not --.

Ms. Morris: You just sit in there and do what you – and do it – and face the consequences.

Ms. Morris: You could have hurt her. I’m not worried about me. You could have hurt her, J.R.

Mr. Andrews: What do you mean?

Ms. Morris: What do you – what do you mean, what do I mean? You only had a six-pack yesterday. Quit acting like you were – you were so out of it, you blacked out. Okay? You remember everything. Don’t act like it. I’m not dropping anything. You understand?

Mr. Andrews: You mean when you – or (unintelligible) like – (overtalking).

Ms. Morris: And you – and you shouldn’t even be calling me right now. Do you understand that?

Mr. Andrews: Sarah, will you please, please drop these charges, so I don’t have to –.

Ms. Morris: And you – You shouldn’t even be calling me right now. Do you understand that?

Ms. Morris: I thought – I thought Dillon was calling me, because Dillon’s the only person who calls me from jail. Washington App. No. 22CA28 6

Mr. Andrews: I’ll buy you that damn car, Sarah, if you just drop these damn charges on me, so I can get out of here, and I’ll stay at my dad’s house. Please.

Ms. Morris: No, you don’t need the charges dropped.

Mr. Andrews: Yes, I do.

Ms. Morris: I don’t even know how to do that, even if –.

Mr. Andrews: All you got to do is go in there tomorrow and have the charges dropped.

Ms. Morris: No. I don’t – I don’t believe you. You are a liar. You are manipulative, and I have – and I do have a sort of restraining order against you. Well, it was supposed to be in effect tomorrow, because I was coming in to make sure.

Mr. Andrews: Oh, please go in tomorrow and have this stuff dropped, Sarah. I’ll buy you the damn car. You can have the fucking kids. You can have it all, I’ll go live at my dad’s house. Please.

Ms. Morris: No.

{¶5} Later during the call the following exchange occurred:

Ms. Morris: You know what? You criminals think that you guys can just get away with everything. Why did you call me?

Mr. Andrews: Because I don’t want to have to spend three grand to get out of here. I was supposed to get a car today --.

{¶6} Finally, near the end of the phone call, after Andrews accused Morris

of having wrecked their car, the following conversation occurred.

Mr. Andrews: On top of all that, I mean, you don’t owe me a little bit for any – anything I’ve done?

Ms. Morris: You know what? I – you know, I let you have the kids’ money from the tax money. That’s Washington App. No. 22CA28 7

what – that’s what I let you have That’s what, five grand. Isn’t that enough? I let you have it. Give it to you.

{¶7} After the audio of the phone call concluded, the State continued to

question Morris. Morris claimed that she and Andrews had been talking about

getting a car for some time so he could get back to work. And, despite her

insistence that she would not drop the charges, Morris testified that she spoke to

the victim’s advocate representative the next day and requested that the

domestic violence charges against Andrews be dismissed, but found out that she

did not have the authority to do so.

{¶8} Morris testified that law enforcement officials spoke to her about the

phone call with Andrews. Morris filled out a witness statement regarding the

phone call. Morris read part of her witness statement, in which she stated that

Andrews “called me and wanted to get out, and he said that if I dropped the

charges, he would give me money or buy me a car.” The State then asked

Morris if the charges had been dropped, she responded affirmatively.

{¶9} On cross-examination, Morris confirmed that Andrews was trying to

save to buy a car. Morris testified that at that time she did not have a driver’s

license and did not drive because an auto accident that she suffered traumatized

her. She admitted that giving her a car would have no benefit to her. Morris also

stated that Andrews discussed purchasing a car even before he was arrested on

the domestic violence charges. She indicated that she never received a

subpoena to testify in Andrews’ domestic violence case. Additionally, she

discovered that she did not have any authority to drop the domestic violence Washington App. No. 22CA28 8

charges against Andrews. Lastly, Morris testified that Andrews picked her up to

bring her to the trial because her other ride did not show.

{¶10} The State’s next witness was Ariel Dair, who is an advocate for

victims of crime. Her role is to keep crime victims up-to-date regarding their

cases by calling, texting or e-mailing them. Dair was Morris’ advocate in the

domestic violence case against Andrews. Dair testified that she had problems

with Morris showing up at the court. Dair stated that Morris did not show up for

the grand jury. Dair attempted to set up a meeting with Morris to determine if she

was going to show, but the meeting did not get scheduled. Dair maintained that

ultimately, if a witness in a domestic violence case does not show, typically the

defendant pleads guilty to a lesser charge or the case will be dismissed. Dair

was unsuccessful in subpoenaing Morris to testify in the domestic violence case

against Andrews.

{¶11} On cross-examination, Dair testified that a victim of domestic

violence cannot have the charges dropped at their request. Dismissing criminal

charges is not the victim’s decision, it is the State’s.

{¶12} The State then called Derek Tewanger, a detective for the Marietta

Police Department, to testify. Officer Tewanger stated that he was assigned to

investigate a possible bribery charge that arose from a call between Morris and

Andrews, who was in jail at the time. Tewanger interviewed Andrews, which was

recorded. The State played that recording for the jury.

{¶13} After Tewanger read Andrews his Miranda rights and Andrews

acknowledged that he understood them, Tewanger proceeded to question Washington App. No. 22CA28 9

Andrews. Tewanger told Andrews that he wanted to discuss the phone call he

had with Morris. Andrews told Tewanger that he did not try to bribe Morris by

offering her a car if she dropped the charges against him.

{¶14} Tewanger testified that after he spoke to Andrews, he interviewed

Morris, who filled out a witness statement. Morris told Tewanger that she

answered the call from Andrews because she thought it was her brother, but it

turned out to be Andrews. Tewanger testified that after speaking to both

Andrews and Morris, some things stood out including in part that Andrews

“wanted the charges dropped, in return for giving her -- at one point, he says I’ll

give you a car, and then he says something later about possibly maybe even

buying a new car.”

{¶15} On cross-examination, Tewanger admitted that it was not a

complaint from Morris that triggered Tewanger’s interview of Andrews but a law

enforcement official who had overheard the conversation. Tewanger testified

that Morris was surprised that Andrews was being investigated for bribery.

Tewanger testified that he did not consult with the prosecutor’s office before filing

the bribery charge. Tewanger stated that he believed that the domestic violence

case against Andrews was dismissed. Tewanger did not believe that a

protection order was issued in the domestic violence case. At the conclusion of

Tewanger’s testimony the State rested.

{¶16} Andrews moved for acquittal of the bribery charge pursuant to

Crim.R. 291 because there was insufficient evidence to send the case to the jury.

1 Crim.R. 29 (A) states: Washington App. No. 22CA28 10

R.C. 2921.02(C) essentially prohibits two actions: (1) corrupting a witness by

offering the witness something of value, or (2) improperly influencing a witness

by offering the witness something of value. The court stated:

We’re going to take out the corrupt part, because I mean, there’s actually no means to destroy the honesty or integrity of another. No one’s been asked to lie. So that’s – so the question is, it’s the improper – improperly influence a witness with respect to her testimony in an official proceeding, I think, is the only thing there’s been any evidence presented towards.

Thus, the court granted Andrews’ motion in part, and denied it in part. The court

permitted the question of whether Andrews improperly influenced Morris by

offering her something of value to be considered by the jury.

{¶17} The case then shifted to Andrews who waived his right to testify,

and the defense rested.

{¶18} After closing arguments and the jury instructions, the jury began its

deliberations. The jury found Andrews guilty of bribery. The court sentenced

Andrews to a definite prison term of 24 months and notified him that he may be

subjected to a period of post-release control. Andrews appeals his conviction to

this court.

ASSIGNMENTS OF ERROR

I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHT OF DUE PROCESS AS GUARANTEED BY THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION.

Motion for Judgment of Acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. Washington App. No. 22CA28 11

II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF APPELLANT IN VIOLATION OF HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE OHIO CONSITUTION AND THE UNITED STATES CONSTITUTION .

III. APPELLANT SUFFERED PREJUDICE WHEN THE PROSECUTOR MADE MULTIPLE IMPROPER COMMENTS DURING CLOSING ARGUMENTS.

I. First Assignment of Error

{¶19} In his first assignment of error, Andrews admits that he requested

Morris to drop the domestic violence charges. He also admits the record

indicates that he intended to buy a car. However, he claims that the record also

shows that purchasing the car was pre-planned and the car was for the benefit of

his family. Andrews argues that the jury could not have inferred from the

evidence admitted that he was purchasing the car for the purpose of having

Morris dismiss the domestic violence charges against him. In support of this

argument, Andrews cites several excerpts from his phone conversation with

Morris. He told Morris: “But I need to buy a car, and I’m going to be spending all

the money I got in the bank on getting out of here.” He claims that Morris

“testified to the same.” He also cites the following statement:

I don’t need to spend 2- or $3,000 trying to bail out on an F4. I really wish you’d go, you’d drop the charges. If you want me to go out to my dad’s house or whatever, I’ll go out to my dad’s house. But I need to buy a car, and I’m going to be spending all the money I got in the bank on getting out of here. Let me get back to working. Getting a vehicle and working.

Finally, he cites: “Because I don’t want to have to spend three grand to get out of

here. I was supposed to get a car today.” Andrews maintains that these

statements establish that the purchase of the car was pre-planned and for the Washington App. No. 22CA28 12

benefit of the entire family, not a bribe. Therefore, Andrews maintains that his

conviction for bribery is against the manifest weight of the evidence.

{¶20} In response, the State maintains that it offered evidence showing

that Andrews influenced Morris’ testimony. During the call with Andrews, Morris

was insistent that she was not going to drop the domestic violence charges

against him. Consequently, the State asserts, “it stands to reason that Andrews

had to offer her something to get her to change her mind.” According to the

State, this is precisely what Andrews did when he stated: “I’ll give you the frickin’

car or something, a cheap one, and buy me another one or something. Just

don’t make me spend 2-$3,000 to bail out of here.” The State also cites Morris’

witness statement, which confirmed that Andrews tried to bribe her.

{¶21} The State asserts that Ariel Dair, the crime victim’s advocate,

testified that subsequent to the phone call with Andrews, Morris no longer

supported the domestic violence charges against him. The State argues that

from this change of mind, a jury could infer that Andrews persuaded Morris not to

testify by offering her a thing of value.

{¶22} The State takes issue with Andrews’ argument that the car was a

“family purchase.” Morris testified that having a car would benefit her and her

family and she needed a car to get to work. Andrews knew that Morris needed a

car for personal and family reasons and threatened “if she [did] not drop the

charges that he [would] spend the money intended for the car, and /or child tax

credit money, to pay his bail to get out of jail.” Washington App. No. 22CA28 13

{¶23} Thus, the State maintains that the jury reasonably concluded that

Andrews’ offer of a car to Morris during the phone call was intended to bribe

Morris to drop the domestic violence charges against him. Consequently, the

State argues, Andrews’ conviction for bribery was not against the manifest weight

of the evidence.

A. Law

{¶24} In a manifest-weight-of-the-evidence analysis, “the appellate court

‘sits as a thirteenth juror’ and assesses whether it disagrees with the factfinder's

resolution of the conflicting testimony.” State v. Griffin, 2013-Ohio-3309, ¶ 31

(4th Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52

(1997). “Weight of the evidence concerns the inclination of the greater amount of

credible evidence offered at trial to support one side of the issue over the other; it

relates to persuasion and involves the effect of the evidence in inducing belief.”

Fox v. Positron Energy Res., Inc., 2017-Ohio-8700, ¶ 10 (4th Dist.), citing Paulus

v. Beck Energy Corp., 2017-Ohio-5716, ¶ 16 (7th Dist.).

{¶25} “ ‘In determining whether a criminal conviction is against the

manifest weight of the evidence, we must review the entire record, weigh the

evidence and all reasonable inferences, [and] consider the credibility of

witnesses[.]’ ” [Brackets sic.] State v. Ratliff, 2024-Ohio-61, ¶ 48 (4th Dist.),

quoting State v. Evans, 2023-Ohio-1879, ¶ 26 (4th Dist.), citing Thompkins, 78

Ohio St.3d at 387 (1997). “An inference is ‘a conclusion which, by means of data

founded upon common experience, natural reason draws from facts which are

proven.’ ” State v. Windle, 2011-Ohio-4171, ¶ 34 (11th Dist.), quoting State v. Washington App. No. 22CA28 14

Nevius, 147 Ohio St. 263, 274 (1947). A reviewing court must “ ‘determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that reversal of the conviction

is necessary.’ ” Ratliff at ¶ 48, quoting Evans at ¶ 26. Ultimately, “ ‘[j]udgments

supported by some competent, credible evidence going to all the essential

elements of the case will not be reversed by a reviewing court as being against

the manifest weight of the evidence.’ ” State v. Newcomb, 2024-Ohio-805, ¶ 19

(4th Dist.), quoting C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279

(1978), syllabus.

B. Analysis

{¶26} Andrews was convicted of bribery pursuant to R.C. 2921.02(C),

which states: “No person, with purpose to corrupt a witness or improperly to

influence a witness with respect to the witness's testimony in an official

proceeding, either before or after the witness is subpoenaed or sworn, shall

promise, offer, or give the witness or another person any valuable thing or

valuable benefit.” (Emphasis added.)

{¶27} During the phone call, in response to Morris asking him why he

called her, Andrews responded: “Because I don’t want to have to spend three

grand to get out of here. I was supposed to get a car today --.” And Morris

testified that she and Andrews had been talking about getting a car for some time

so he could get back to work. Andrews maintains that this testimony prevented

the jury from inferring that Andrews offered Morris a car in exchange for her

dropping the charges against him. Arguably, it could support an inference that Washington App. No. 22CA28 15

purchasing a car was being considered before Andrews was charged with

domestic violence.

{¶28} However, Andrews’ argument ignores that on three separate

occasions during the phone call, he told Morris that if she dropped the charges

against him he would buy her a car. While Morris had no authority to dismiss the

criminal charges against Andrews, she could have accepted the car and refused

to testify as the victim in Andrews’ domestic violence case. In fact, Morris’

victim’s advocate, Dair, testified that Morris did not show up for the grand jury,

and Dair was unsuccessful in subpoenaing Morris to testify in Andrews’ case.

Dair also testified that a victim’s failure to testify in a domestic violence case

typically results in the State seeking a lesser charge against the defendant, or

that the case is dismissed. We find that this testimony could support the

conclusion that Andrews was offering Morris an item of value to improperly

influence her not to testify as a witness in his domestic violence case, i.e., that

Andrews bribed Morris.

{¶29} Therefore, when weighing the evidence and considering all the

reasonable inferences therefrom, we do not find that the jury clearly lost its way

in finding Andrews guilty of bribery so as to create a manifest miscarriage of

justice. Thus, we find that Andrews’ conviction for bribery is not against the

manifest weight of the evidence. Accordingly, we overrule Andrews’ first

assignment of error.

II. Second Assignment of Error Washington App. No. 22CA28 16

{¶30} In his second assignment of error, Andrews maintains that his

conviction was not supported by sufficient evidence. Andrews claims that the

“State’s theory was that the improper influence of testimony relates to whether

Morris testifies at all – not whether she testified truthfully.” He claims that

influencing a witness to dismiss charges is insufficient to constitute bribery.

Andrews argues that “no evidence was submitted that [he] acted with the

purpose of preventing Morris from testifying.” Therefore, there is insufficient

evidence to sustain Andrews’ conviction for bribery.

{¶31} Andrews also argues that R.C. 2921.02(C) “requires more than

influencing a decision to prosecute – it requires improperly influencing

testimony.” (Emphasis sic.) Andrews claims that “[n]o direct evidence was

produced that [he] sought to have Morris not testify. The only evidence in the

record to support the State’s theory was circumstantial.” Andrews claims that at

best the record demonstrates that he sought to influence Morris’ decision to

prosecute, but that is not influencing testimony.

{¶32} In response, the State maintains that there is sufficient evidence to

support Andrews’ conviction for bribery under R.C. 2921.02(C). The State claims

that it has always argued that Andrews sought to influence Morris’ testimony by

getting her to drop the domestic violence charges against him. The State

reasons that there would be no need for testimony if Morris dismissed the

charges. Therefore, the State asserts that Andrews’ second assignment of error

should be overruled.

A. Law Washington App. No. 22CA28 17

{¶33} Andrews’ second assignment of error asserts that his conviction for

bribery is not supported by sufficient evidence. However, in part, his argument

appears to be predicated on what conduct Andrews believes the bribery statute

prohibits.

{¶34} The latter of the two issues requires us to interpret R.C. 2921.02(C).

“[I]nterpretation of criminal statutes [ ] presents an issue of law that is reviewed

de novo on appeal.” State v. Garduno, 2013-Ohio-4300, ¶ 11 (11th Dist.), citing

State v. Consilio, 2007-Ohio-4163, ¶ 8. “A court does not need to interpret a

statute ‘when statutory language is plain and unambiguous and conveys a clear

and definite meaning.’ ” Id., quoting Campbell v. Carlisle, 2010-Ohio-5707, ¶ 8.

{¶35} Next, we must address Andrews’ assertion that there is insufficient

evidence to support his bribery conviction. When reviewing a sufficiency of the

evidence claim, an appellate court’s function 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.” State v.

Ruppert, 2013-Ohio-4878, ¶ 28 (4th Dist.), citing State v. Dennison, 2007-Ohio-

4623, ¶ 9 (4th Dist.). Thus, “[t]he 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.” Id., citing State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307 (1979).

The sufficiency of the evidence test examines the adequacy of the evidence, not

its persuasiveness. Dennison at ¶ 10. Washington App. No. 22CA28 18

{¶36} “The sufficiency-of-the-evidence test ‘raises a question of law and

does not allow us to weigh the evidence.’ ” State v. Knowlton, 2012-Ohio-2350,

¶ 11 (4th Dist.), quoting State v. Smith, 2007-Ohio-502, ¶ 34 (4th Dist.).

Moreover, “ ‘[t]he court must defer to the trier of fact on questions of credibility

and the weight assigned to the evidence.’ ” State v. Dillard, 2014-Ohio-4974, ¶

22 (4th Dist.), citing State v. Kirkland, 2014-Ohio-1966, ¶ 132. “Instead, the

sufficiency-of-the-evidence test ‘ “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” ’ ” Knowlton at ¶ 11,

quoting Smith at ¶ 33, quoting Jackson at 319.

1. R.C. 2921.02(C)

{¶37} Andrews argues that the offense of bribery requires evidence of

improper influence of testimony. Andrew maintains that the State’s bribery

charge was based on its theory that improper influence over a witness is all that

is necessary to prove bribery. He claims that merely influencing a witness to

take some action like not testifying, as opposed to altering their testimony, is

insufficient to prove bribery.

{¶38} As applicable to Andrews under R.C. 2921.02(C), “No person, with

purpose * * * improperly to influence a witness with respect to the witness's

testimony in an official proceeding * * * before * * * the witness is subpoenaed * *

* , shall promise, offer, or give the witness * * * any valuable thing[.]” “Improper

influence” has been defined as “bring[ing] undue pressure upon a person to try to Washington App. No. 22CA28 19

get something that they wouldn’t normally do.” The Law Dictionary, https://the

lawdictionary.org/?s=influence. However, the statute does not limit the effect that

the influence has upon the witness. In other words, a person’s influence of a

witness may result in a broad spectrum of outcomes from altering the witness’

testimony to convincing the witness to not testify at all. See State v. Hoehn,

2004-Ohio-1419, ¶ 41 (9th Dist.) (Appellant was convicted of bribery under R.C.

2921.02(C) for “offering to give [his wife] whatever she wanted in their pending

divorce action if she would recant her accusations as to the charges of felonious

assault.” The court of appeals found his conviction was not against the manifest

weight of the evidence.); State v. White, 2019-Ohio-243, ¶ 4, 64-69 (6th Dist.)

(Appellant was convicted of bribery conviction under R.C. 2921.02(C) for offering

the victim of his assault $1,500 to not show up in court. The court of appeals

found his conviction was not against the manifest weight of the evidence.).

{¶39} Therefore, based on de novo review of R.C. 2921.02(C), we reject

Andrews’ argument that the State’s bribery charge was predicated on its legally

insufficient theory because the State presented evidence that Andrews

influenced a witness, as opposed to evidence showing that he influenced

testimony. In fact, R.C. 2921.02(C) prohibits a person from “influenc[ing] a

witness[,]” including influencing him or her to not testify at all.

2. Sufficiency of the Evidence

{¶40} Typically, a finding that a conviction is supported by the manifest

weight of the evidence is “also dispositive of the issue of sufficiency.” State v.

Sims, 2023-Ohio-1179, ¶ 120 (4th Dist.), citing State v. Waller, 2018-Ohio-2014, Washington App. No. 22CA28 20

¶ 30 (4th Dist.). However, in this case, Andrews’ argument that there is

insufficient evidence to support his bribery conviction is based on a different

argument than he relied upon in arguing that his conviction was against the

manifest weight of the evidence. He claims that his conviction is not supported

by sufficient evidence because the bribery statute requires a person to influence

testimony, not just a witness. Therefore, we proceed to evaluate his sufficiency

of the evidence argument despite our conclusion in resolving Andrews’ first

assignment of error in finding that his conviction is not against the manifest

weight of the evidence.

{¶41} Our analysis recalls our conclusion supra that improperly influencing

a witness with respect to their testimony includes influencing a witness to not

testify at all. On multiple occasions during the phone call, Andrews offered

Morris a car if she agreed to drop the charges. There is no legal authority

affording a witness the right to dismiss criminal charges. Only a court, or the

State with leave of a court, may dismiss criminal charges. See State v. Busch,

76 Ohio St.3d 613 (1996); R.C. 2941.33; and Crim.R. 48. However, Busch also

recognized that “a court's resources in a domestic violence case are better used

by encouraging a couple to receive counseling and ultimately issuing a dismissal

than by going forward with a trial and impaneling a jury in a case where the only

witness refuses to testify.” Id. at 616. In other words, if a witness for the State

refuses to testify, especially a witness who is the victim in a domestic violence

case, it almost certainly results in dismissal of the charges. We find that by

offering Morris a car if she would dismiss the charges against Andrews was in Washington App. No. 22CA28 21

fact influencing Morris to not testify at all. When these facts are viewed in a light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of bribery were proven beyond a reasonable doubt.

{¶42} Therefore, we find that Andrews’ bribery conviction under R.C.

2921.02(C) is supported by sufficient evidence. Accordingly, we overrule

Andrews’ second assignment of error.

III. Third Assignment of Error

{¶43} In his third assignment of error, Andrews alleges that he was

prejudiced by the prosecutor’s improper statements made during the State’s

closing argument. He makes three separate arguments.

{¶44} First, Andrews claims that the prosecutor attacked his credibility and

his counsel’s credibility, which was improper. In support, Andrews cites the

following passage from the prosecutor’s closing argument:

Now in the ocean, there’s two types of fish. There’s a lamprey that enlightens all around them, and shows everything in the ocean. There’s also a pufferfish that blows up and blows smoke everywhere, so you can’t see through it. I want to be the one that just presents the facts and the truth. I don’t want to blow smoke. I don’t want there to be any confusion. That’s why I asked, would everyone just follow the elements of the case. Right? The red, the blue, and the green, and not look into the purple.

{¶45} Andrews also cites the prosecutor’s statement that “[t]he defendant

took his attorney to a witness’s house to prep the day before a case? I’ve never

heard of that. If he’s not trying to influence her there too, prepping her, I mean,

that’s – that’s kind of a new – new thing for me.” Andrews maintains that

prepping a witness is part of “trial practice[,]” but the prosecutor’s comments Washington App. No. 22CA28 22

attack his and his counsel’s credibility by suggesting that witness preparation is

improper.

{¶46} Next, Andrews claims that the prosecutor encouraged the jury to

consider evidence outside the record. Specifically, Andrews cites it was

improper when the prosecutor “suggests that the jury should do anything they

want to investigate the allegations.”

{¶47} Finally, Andrews maintains that the prosecutor made several

statements that are not supported by the record. Andrews cites the following

passage from the prosecutor’s closing argument:

And they say, oh, the car was already going to happen, whatever. But the, the funny thing – actually, it’s very sad. Very sad thing. The money that he told her that he would have to use to bond out was their children’s child tax credit money, the money that’s supposed go to their food, to their clothes, to anything to better their children. He put that over her head that he would use that money to bond himself out of jail. What is more influential to a mother of two? She had an eight-month old and a three-year old. What is more influential to change someone’s testifying, to get them not to testify , to hold over that money that is to feed her children? What mother could resist that? What mother would not take that money and make sure she would drop the charges so that her children could eat? That was the most despicable thing I’ve ever heard, to put that over a mother’s head. Of course he influenced her. Of course he influenced her, and that’s why she didn’t show up, because she wanted to feed her children.

{¶48} The prosecutor appears to be claiming that Andrews threatened to

use tax return money to pay his bail and deprive Morris of funds that were to be

used to support the children. Andrews argues that the prosecutor’s statements

are not supported in the record.

1. Prosecutorial Commentary Washington App. No. 22CA28 23

{¶49} During closing arguments, the prosecution is given wide latitude to

convincingly advance its strongest arguments and positions. State v. Phillips, 74

Ohio St.3d 72, 90 (1995). “Further, it is well settled that statements of counsel

are not to be considered as evidence.” Id., citing State v. Clark, 2016-Ohio-2705,

¶ 45 (4th Dist.); State v. Canterbury, 2015-Ohio-1926, ¶ 23 (4th Dist.).

Therefore, if a court instructs a jury that opening and closing statements are not

evidence, “ ‘ “[a] presumption always exists that the jury has followed the

instructions given to it by the trial court.” ’ ” Id. at ¶ 66, quoting State v. Murphy,

2010-Ohio-5031, ¶ 81 (4th Dist.), quoting Pang v. Minch, 53 Ohio St.3d 186

(1990), paragraph four of the syllabus.

{¶50} Nevertheless, “[P]rosecutors must be diligent in their efforts to stay

within the boundaries of acceptable argument and must refrain from the desire to

make outlandish remarks, misstate evidence, or confuse legal concepts.” State

v. Fears, 86 Ohio St.3d 329, 332, 1999-Ohio-111.

2. Standard of Review

a. Plain Error

{¶51} As a threshold matter, because Andrews did not object to the

prosecutor’s statements during the trial, he has forfeited all but plain error review

of the prosecutor’s statements. State v. Thomas, 2024-Ohio-2281, ¶ 16 (4th

Dist.), citing State v. Conant, 2020-Ohio-4319, ¶ 4 (4th Dist.). Notice of Crim.R.

52(B) plain error must be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v.

Rohrbaugh, 2010-Ohio-3286, ¶ 6. “For the plain error doctrine to apply, the party Washington App. No. 22CA28 24

claiming error must establish (1) that ‘ “an error, i.e., a deviation from a legal rule”

’ occurred, (2) that the error was ‘ “an ‘obvious’ defect in the trial proceedings,” ’

and (3) that this obvious error affected substantial rights, i.e., the error ‘ “must

have affected the outcome of the trial.” ’ ” State v. Young, 2018-Ohio-4990, ¶ 4

(4th Dist.), quoting State v. Rogers, 2015-Ohio-2459, ¶ 22, quoting State v.

Barnes, 2002-Ohio-68, ¶ 27. “Thus, for error to be plain, the error must be

‘ “clearly outcome-determinative.” ’ ” State v. Porter, 2012-Ohio-1526, ¶ 19 (4th

Dist.), quoting State v. Perez, 2009-Ohio-6179, ¶ 181, quoting State v. Sanders,

92 Ohio St.3d 245, 268 (2001). Consequently, “[i]n the prosecutorial misconduct

context, plain error exists only when the record clearly shows that in the absence

of the improper comments, the jury would not have convicted the defendant.” Id.,

citing State v. Conley, 2009-Ohio-1848, ¶ 27 (4th Dist.), citing State v. Olvera-

Guillen, 2008-Ohio-5416, ¶ 36 (12th Dist.), and State v. Rodgers, 2008-Ohio-

2757, ¶ 44 (11th Dist.).

b. Reviewing Prosecutorial Misconduct

{¶52} When an appellant alleges prosecutorial misconduct, the reviewing

court must determine “ ‘whether the conduct was improper and, if so, whether the

rights of the accused were materially prejudiced.’ ” State v. Leonard, 2009-Ohio-

6191, ¶ 36 (4th Dist.), quoting State v. Smith, 2002-Ohio-6659, ¶ 45. “The

‘touchstone of analysis * * * is the fairness of the trial, not the culpability of the

prosecutor. * * * The Constitution does not guarantee an “error free, perfect trial.”

’ ” (Ellipses sic.) Id., quoting State v. Gest, 108 Ohio App.3d 248, 257 (8th Dist.

1995). “[A]n appellate court must not focus on isolated comments but must Washington App. No. 22CA28 25

examine the prosecution's closing argument in its entirety to determine whether

the prosecutor's comments prejudiced the defendant.” State v. Topping, 2012-

Ohio-5617, ¶ 84 (4th Dist.) citing, State v. Treesh, 90 Ohio St.3d 460, 466

(2001).

{¶53} An example of an improper comment would be an attorney

“express[ing] his personal belief or opinion as to the credibility of a witness or as

to the guilt of the accused.” State v. Smith, 14 Ohio St. 3d 13, 14 (1984), citing

State v. Thayer, 124 Ohio St. 1 (1931). It is also improper for an attorney “to

allude to matters which will not be supported by admissible evidence.” Id.

{¶54} “To establish prejudice, a defendant must show that a reasonable

probability exists that, but for the prosecutor's improper remarks, the result of the

proceeding would have been different.” State v. Porter, 2012-Ohio-1526, ¶ 20

(4th Dist.). “Thus, ‘[n]ot every intemperate remark by counsel can be a basis for

reversal.’ ” [Bracket sic.] Id., quoting State v. Landrum, 53 Ohio St.3d 107, 112

(1990). “ ‘The “conduct of a prosecuting attorney during trial cannot be grounds

for error unless the conduct deprives the defendant of a fair trial.” ’ ” State v.

Purdin, 2013-Ohio-22, ¶ 31 (4th Dist.), quoting State v. Givens, 2008-Ohio-1202,

¶ 28 (4th Dist.), quoting State v. Gest, 108 Ohio App.3d 248, 257 (8th Dist.1995);

State v. Gant, 1978 WL 215091 (7th Dist., Nov. 16, 1978), *2 (Borderline

improper comments are not reversable error unless they deprive the defendant of

a fair trial.). “ ‘Prosecutorial misconduct constitutes reversible error only in rare

instances.’ ” Id., quoting State v. Edgington, 2006-Ohio-3712, ¶ 18 (4th Dist.),

citing State v. Keenan, 66 Ohio St.3d 402, 406 (1993). If, absent a prosecutor’s Washington App. No. 22CA28 26

borderline improper comments, a jury would still find the defendant guilty, the

comments are not reversable error. State v. Ray, 2010-Ohio-513, ¶ 23 (8th

Dist.).

{¶55} We begin by recognizing that the trial court instructed the jury that

the parties’ opening and closing arguments were not evidence. The court told

the jury that they are merely intended to “assist you in evaluating the evidence.”

The court also instructed the jury that they had to find evidence to support

beyond a reasonable doubt that Andrews “with purpose to improperly influence a

witness with respect to the witnesses’ testimony in an official proceedings, either

before or after the witness was subpoenaed or sworn, promised, offered, or gave

the witness any valuable thing or valuable benefit.” The jury was permitted to

take a copy of the instructions into the deliberation room as a reminder. The jury

is presumed to follow the court’s instructions, and as we recognize infra, none of

the prosecutor’s statements cited by Andrews in his third assignment of error

alter that presumption.

1. The Prosecutor’s Statement Did Not Discredit Andrews or his Counsel

{¶56} Andrews first complains that the prosecutor’s following statement

was an attempt to discredit Andrews and his counsel.

There’s a lamprey that enlightens all around them, shows everything in the ocean. There’s also a pufferfish that blows up and blows smoke everywhere, so you can’t see through it. I want to be the one that just presents the facts and the truth. I don’t want to blow smoke. I don’t want there to be any type of confusion. That’s why I asked, would everyone follow just the elements of the case. Right? Washington App. No. 22CA28 27

{¶57} We do not find that the prosecutor’s analogy as an attempt to

discredit Andrews or his counsel. Instead, the prosecutor stated that “[he]

wanted to be the lamprey,” i.e., he wants to enlighten the jury. Furthermore, the

prosecutor here also urges the jury to “follow just the elements of the case,”

which included the judge’s instructions to the jury regarding the elements of

bribery, which the State must prove beyond a reasonable doubt, and that closing

statements are not evidence. We must presume that the jury followed these

instructions and we find that Andrews has not rebutted that presumption.

Therefore, we find the prosecutor’s statement was not improper.

{¶58} Andrews next cites the prosecutor’s following comment: “The

defendant took his attorney to a witness’s house to prep the day before a case?

I’ve never heard of that. If he’s not trying to influence her there too, prepping her,

I mean, that’s – that’s kind of a new thing for me.” He claims that this statement

was improper because it suggests that his counsel’s “interviewing witnesses

before a trial constitutes a crime.”

{¶59} Although we do not find that the prosecutor’s comments here

“criminalize routine legal work” as Andrews suggests, they do border on being an

improper attack on the defense counsel’s witness preparation. Nevertheless, we

find even absent these comments, the jury would have still convicted Andrews of

bribery. Assertions made by the attorneys and testimony from the witnesses

were somewhat less critical in this case compared to most others. This is

because the evidence of the bribery came directly from the phone conversation Washington App. No. 22CA28 28

between Andrews and Morris, which was recorded in its entirety and heard by

the jury.

{¶60} Therefore, we find that Andrews was not prejudiced by the

prosecutor’s comments. Andrews was not deprived of his right to a fair trial by

said comments.

2. The Prosecutor’s Statement Did Not Urge The Jury to Consider Evidence Outside the Record

{¶61} Andrews cites the prosecutor’s statement: “So once you’ve gone

back, listened to the calls again, you’ve done anything that you want to do to

investigate this, I believe that you will find the defendant, James Andrews, guilty

of bribery.” Andrews maintains this statement encouraged the jury to improperly

consider evidence outside the record. We disagree. The jury is about to

deliberate whether Andrews is guilty or not. From a practical perspective, it is

impossible for the jury to further investigate the claim. Although it could have

been stated in a more articulate manner, we find that the prosecutor is merely

reminding the jury that it may freely consider the evidence presented to

determine Andrews’ guilt or innocence. Therefore, we find that the statement

was not improper.

3. The Prosecutor’s Statement Regarding a Tax Refund Was Not Prejudicial

{¶62} Andrews claims that several statements by the prosecutor in the

following passage during the State’s closing argument are not supported in the

record.

And they say, oh, the car was already going to happen, whatever. But the, the funny thing – actually very sad. Very sad thing. The money that he told her that he would have to use to Washington App. No. 22CA28 29

bond out was their children’s child tax credit money, the money that’s supposed go to their food, to their clothes, to anything to better their children. He put that over her head that he would use that money to bond himself out of jail. What is more influential to a mother of two? She had an eight-month old and a three-year old. What is more influential to change someone’s testifying, to get them not to testify, to hold over that money that is to feed her children? What mother could resist that? What mother would not take that money and make sure she would drop the charges so that her children could eat? That was the most despicable thing I’ve ever heard, to put that over a mother’s head. Of course he influenced her. Of course he influenced her, and that’s why she didn’t show up, because she wanted to feed her children.

During the phone call after Andrews again stated that it would cost him $3,000 for

bail, the following exchange occurred.

Mr. Andrews: “On top of all that, I mean, you don’t owe me a little bit for anything – anything I’ve done?”

Ms. Morris: “You know what, I let you have the kids money from the tax money. That’s what – that’s what I let you have. That’s what, five grand? Isn’t that enough? I let you have it. Give it to you.”

{¶63} Additionally the following testimony was elicited by the prosecutor

from Morris.

Q: “Okay. There was talk of money, and talk about an automobile, and that money was supposed to be used to pay for the children’s stuff. Is that correct? However, Morris testified that the tax return money was to be used to support the children.”

A: “Are you talking about the tax money?”

Q: “Yeah.”

A: “That was, I was talking about that. Just, yeah, just in general, anything.” Washington App. No. 22CA28 30

{¶64} According to Morris’ testimony, it appears that the tax return money

would have been used for the children, among other things, so portions of the

prosecutor’s statement were consistent with the phone conversation and

testimony. However, during the phone call, Morris claimed that she gave the tax

return money to Andrews. Therefore, it is unclear how, according to the

prosecutor’s statement, Andrews held the tax money “over her head that he

would use that money to bond himself out of jail.” Consequently, the accuracy of

that assertion by the prosecutor’s statement appears to be in question. However,

we do not find that his statement encouraged the jury to consider evidence

outside the record as Andrews argues. Therefore, we find that the prosecutor’s

statements during his closing argument regarding the tax credit money were not

4. The Prosecutor’s Comments Did Not Prejudice Andrews

{¶65} With the exception of one possible borderline-improper comment,

we find that the prosecutor’s statements during his closing argument were not

improper. Moreover, based on our plain error review, we find that the one

borderline improper comment does not alter the outcome, i.e., even absent the

improper comments, Andrews would still have been convicted of bribery because

the jurors heard the actual recorded conversation during which Andrews made

multiple offers to get Morris a vehicle if she would drop the charges. Accordingly,

we overrule Andrews’ third assignment of error.

CONCLUSION Washington App. No. 22CA28 31

{¶66} Having overruled Andrews’ three assignments of error, we affirm the

trial court’s judgment entry of his conviction.

JUDGMENT AFFIRMED. Washington App. No. 22CA28 32

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and the appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________ Kristy S. Wilkin, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.