[Cite as State v. Shipley, 2025-Ohio-5001.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-25-02
PLAINTIFF-APPELLEE,
v.
R. SCOTT SHIPLEY, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 24-CR-0005
Judgment Affirmed
Date of Decision: November 3, 2025
APPEARANCES:
Dustin M. Blake for Appellant
Andrew M. Bigler for Appellee Case No. 14-25-02
ZIMMERMAN, J.
{¶1} Defendant-appellant, R. Scott Shipley (“Shipley”), appeals the
December 23, 2024 judgment entry of sentence of the Union County Court of
Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from an incident at a Marysville, Ohio Walmart on
December 11, 2023. As he was exiting the store, Shipley was confronted by Asset
Protection Investigator, Alice Sorrell (“Sorrell”), with about $100.79 worth of
unpaid Legos in his cart. In response, Shipley pushed the (full) shopping cart past
her, striking her, though she was not injured. While loading his vehicle to leave,
Shipley then threw a box of Legos in Sorrell’s direction.
{¶3} On January 9, 2024, the Union County Grand Jury indicted Shipley on
a single count of robbery in violation of R.C. 2911.02(A)(3), (B), a third-degree
felony. On January 23, 2024, Shipley appeared for arraignment and pleaded not
guilty.
{¶4} The case proceeded to a jury trial on October 28 and 29, 2024. On
October 29, 2024, the jury found Shipley guilty of the sole count alleged in the
indictment. Notably, the trial court instructed the jury on the lesser-included offense
of theft. On December 23, 2024, the trial court sentenced Shipley to five years of
community control.
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{¶5} Shipley filed his notice of appeal on January 21, 2025. He raises three
assignments of error for our review. For ease of our discussion, we will begin by
discussing Shipley’s first and second assignments of error together, followed by his
third assignment of error.
First Assignment of Error
The Finding of Guilt As To The Single Count Of Robbery Is Not Supported By The Sufficiency Of The Evidence
Second Assignment of Error
The Verdict Of Guilt As To The Single Count Of Robbery Is Against the Manifest Weight Of The Evidence
{¶6} In his first and second assignments of error, Shipley argues that his
robbery conviction is based on insufficient evidence and is against the manifest
weight of the evidence. In particular, Shipley contends that his robbery conviction
is based on insufficient evidence because the State failed to prove the elements of
theft and force. Shipley specifically argues that his robbery conviction is against
the manifest weight of the evidence due to the contradictory nature of the testimony
and the video evidence failing to show the alleged contact.
Standard of Review
{¶7} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Therefore, we address each legal concept individually.
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{¶8} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[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. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.). See also State v. Berry, 2013-Ohio-2380,
¶ 19 (3d Dist.) (“Sufficiency of the evidence is a test of adequacy rather than
credibility or weight of the evidence.”), citing Thompkins at 386.
{¶9} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of
witnesses and 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
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A reviewing
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court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524,
¶ 119.
Analysis
{¶10} Shipley was convicted of robbery in violation of R.C. 2911.02, which
provides, in its relevant part, that “[n]o person, in attempting or committing a theft
offense or in fleeing immediately after the attempt or offense, shall . . . “[u]se or
threaten the immediate use of force against another.” R.C. 2911.02(A)(3). “The
element of force (or harm) differentiates robbery from theft.” State v. Muncy, 2012-
Ohio-2830, ¶ 19 (11th Dist.).
{¶11} “The statute ‘expressly predicates every robbery on the elements of a
completed or attempted “theft offense,” including all culpable mental states.’” State
v. Godsey, 2024-Ohio-629, ¶ 9 (3d Dist.), quoting State v. Tolliver, 2014-Ohio-
3744, ¶ 8. Ohio’s theft statute prohibits a “person, with purpose to deprive the
owner of property or services,” from “knowingly obtain[ing] or exert[ing] control
over either the property or services . . . [w]ithout the consent of the owner or person
authorized to give consent.” R.C. 2913.02(A)(1). Thus, in this case, the requisite
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culpable mental state for the robbery offense is satisfied by the mental states of
“purpose” and “knowingly” required for the underlying theft offense, and no
separate mens rea must be proven for the use of force. State v. Tussing, 2024-Ohio-
5757, ¶ 17 (3d Dist.); Tolliver at ¶ 18.
{¶12} “A person acts purposely when it is the person’s specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against conduct
of a certain nature, regardless of what the offender intends to accomplish thereby, it
is the offender’s specific intention to engage in conduct of that nature.” R.C.
2901.22(A). “A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B).
{¶13} On appeal, Shipley argues that his robbery conviction is based on
insufficient evidence because the State failed to prove the essential elements of theft
and force. Although Shipley challenges the sufficiency of the evidence for the theft
element in a footnote to his brief, he conceded during oral argument that the theft
offense is supported by sufficient evidence. Nevertheless, for the sake of a complete
review, we will address his claim. Further, Shipley primarily challenges the force
element, contending that the contact with Sorrell was insignificant and caused no
actual or potential harm. Accordingly, our analysis will be limited to the sufficiency
of the evidence for these two elements.
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{¶14} Beginning with the theft element, the State presented sufficient
evidence that Shipley knowingly obtained or exerted control over Walmart’s
property—namely, the Legos—without its consent and with the purpose of
depriving Walmart of the merchandise. Under Ohio law, “‘a person need not leave
a store in order to complete a theft offense under R.C. 2913.02(A)(1); rather, the
person must knowingly obtain or exert control over the merchandise with the intent
to deprive the owner of the property without the owner’s consent.’” State v. Mayes,
2024-Ohio-1801, ¶ 31 (2d Dist.), quoting State v. Brienzo, 2001 WL 1475808, *1
(9th Dist. Nov. 21, 2001). However, “‘[o]nce a person transports merchandise
without payment beyond the checkout points, or in a manner designed to conceal
the merchandise, he has exercised “control” over the merchandise and can be
convicted of shoplifting under R.C. 2913.02(A)(1).’” Id., quoting State v.
Tirabasso, 2000 WL 1371475, *1 (11th Dist. Sept. 22, 2000).
{¶15} In this case, the State presented evidence that Shipley had unpaid
merchandise—the Legos—in his shopping cart when he exited the store. Compare
State v. Ratkovich, 2003-Ohio-7286, ¶ 21 (7th Dist.) (concluding that appellant
“completed the theft, at the latest, when he exited the doors” of the store); Mayes at
¶ 32 (analyzing that “the theft offense was completed when Mayes bypassed Rural
King’s checkout points and walked out of the store’s emergency exit with a
shopping cart full of merchandise he did not pay for”). Contrary to his contention
on appeal, Shipley’s argument that he later abandoned the merchandise does not
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negate the completed theft offense. Therefore, we conclude that the State presented
sufficient evidence that Shipley committed the theft offense.
{¶16} Turning to the force element, the Revised Code defines “force” as
“any violence, compulsion, or constraint physically exerted by any means upon or
against a person or thing.” R.C. 2901.01(A)(1).
For purposes of R.C. 2911.01(A)(3), the element of force is established “if the fear of the alleged victim was of such a nature as in reason and common experience is likely to induce a person to part with property against his will and temporarily suspend his power to exercise his will by virtue of the influence of the terror impressed.”
State v. Tillison, 2019-Ohio-1395, ¶ 14 (9th Dist.), quoting State v. Davis, 6 Ohio
St.3d 91 (1983), paragraph one of the syllabus. “Force is evaluated under an
objective standard.” Id. “In other words, ‘evidence of whether the victims actually
perceived a threat is not necessary; evaluation of the nature of a threat is subject to
an objective, not subjective, test.’” Id., quoting State v. Sumlin, 2000 WL 776986,
*2 (8th Dist. June 15, 2000). The actions and demeanor of a defendant may support
the conclusion that force was threatened.” Id. “The robbery statute does not require
the State to provide evidence that the defendant inflicted physical harm in
furtherance of the purpose to commit the theft offense.” Godsey, 2024-Ohio-629,
at ¶ 13 (3d Dist.).
{¶17} On appeal, Shipley argues that the State failed to present sufficient
evidence of force for several reasons. First, he contends that the evidence was not
certain because Sorrell provided conflicting statements about whether the cart struck
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her foot or her thigh. However, Sorrell’s credibility is an issue for weight of the
evidence rather than the sufficiency of the evidence. Accord State v. Jackson, 2019-
Ohio-1697, ¶ 25 (3d Dist.).
{¶18} Shipley also challenges the evidence of contact, noting it is not visible
on video. He argues that even if contact occurred, it was insignificant—a claim he
supports with Sorrell’s testimony that she was uninjured, unafraid, and refused
medical care. Likewise, he contends Sorrell’s continued pursuit of him
demonstrates she did not perceive a threat. Ultimately, Shipley concludes that his
actions were an attempt to avoid Sorrell, not to use force, and therefore the incident
did not constitute a robbery.
{¶19} “A shoplifter’s use of force in resisting apprehension by store security
may constitute sufficient force to establish robbery under R.C. 2911.02.” State v.
Petty, 1995 WL 645572, *4 (12th Dist. Nov. 6, 1995). In the context of shoplifting,
courts have consistently found that using one’s body to resist a security guard after
a theft elevates the crime to robbery under Ohio’s robbery statute. Muncy, 2012-
Ohio-2830, at ¶ 19 (11th Dist.). “Acts that have been held to fall within the statutory
definition of force by Ohio courts include pushing or striking a store employee.” Id.
{¶20} Based on our review of the record before us, we conclude that the State
presented sufficient evidence of force to elevate Shipley’s theft to a robbery. See
State v. Pillow, 2008-Ohio-6046, ¶ 23 (2d Dist.). Critically, Shipley’s arguments
that Sorrell was not injured or afraid are unavailing because the standard for force
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is objective and does not require actual harm or a subjective fear from the victim.
Likewise, Shipley’s claim that he intended only to avoid Sorrell, not to use force, is
irrelevant since the robbery statute does not require a separate culpable mental state
for the element of force itself. See Godsey, 2024-Ohio-629, at ¶ 10 (3d Dist.)
(acknowledging that the State is not required to prove a culpable mental state with
respect to the use-of-force element in the robbery statute as the section defining the
offense makes it clear that the necessary mens rea is satisfied by the culpable mental
states of the underlying theft offense).
{¶21} Rather, by striking Sorrell with the (full) shopping cart in his attempt
to flee, Shipley used physical violence to resist apprehension. Compare State v.
Grega, 2013-Ohio-4094, ¶ 62 (11th Dist.) (concluding that “even if Rayel did not
sustain any serious injury in the incident, the mere fact that appellant touched her in
order to avoid detainment constituted a use of force which elevated the theft offense
to a robbery”). This physical struggle to avoid detainment is precisely the conduct
that elevates a theft offense to robbery. See State v. Elliott, 2023-Ohio-181, ¶ 16
(11th Dist.). Significantly, the jury was instructed on the lesser-included offense of
theft but rejected it in favor of the robbery conviction, indicating it found the
element of force was proven beyond a reasonable doubt. Therefore, we conclude
that the State presented sufficient evidence that satisfied the force element of the
offense.
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{¶22} Consequently, viewing the evidence in a light most favorable to the
State, we conclude that the State proved the elements of robbery beyond a
reasonable doubt. See Pillow at ¶ 24. Thus, Shipley’s robbery conviction is based
on sufficient evidence.
{¶23} Having concluded that Shipley’s robbery conviction is based on
sufficient evidence, we next address Shipley’s argument that his robbery conviction
is against the manifest weight of the evidence. In support of his manifest-weight-
of-the-evidence argument, Shipley reasserts the claims from his sufficiency of the
evidence challenge, contending that the jury lost its way in resolving the disputed
facts. Specifically, he argues that the jury should not have credited Sorrell’s
testimony due to her conflicting statements about where the cart struck her. He
further claims that the greater weight of the evidence demonstrates any contact was
merely incidental and not the type of force required for a robbery, pointing to
Sorrell’s lack of injury and her admission that she was not afraid.
{¶24} Shipley first argues that his robbery conviction is against the manifest
weight of the evidence because the jury should not have credited Sorrell’s testimony
due to inconsistencies regarding where the cart struck her. However, we will not
second-guess the weight that the jury assigned to the evidence that the contact with
the shopping cart constituted force, or the jury’s witness-credibility determination,
unless it is clear that the jury lost its way and a miscarriage of justice occurred. See
State v. Hooper, 2022-Ohio-2990, ¶ 28 (3d Dist.). “The trier of fact is best able ‘to
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view the witnesses and observe their demeanor, gestures[,] and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.’”
State v. Banks, 2011-Ohio-5671, ¶ 13 (8th Dist.), quoting State v. Wilson, 2007-
Ohio-2202, ¶ 24.
{¶25} “When examining witness credibility, ‘the choice between credible
witnesses and their conflicting testimony rests solely with the finder of fact and an
appellate court may not substitute its own judgment for that of the finder of fact.’”
In re N.Z., 2011-Ohio-6845, ¶ 79 (11th Dist.), quoting State v. Awan, 22 Ohio St.3d
120, 123 (1986). “‘“A verdict is not against the manifest weight of the evidence
because the [jury] chose to believe the State’s witnesses rather than the defendant’s
version of the events.”’” State v. Missler, 2015-Ohio-1076, ¶ 44 (3d Dist.), quoting
State v. Bean, 2014-Ohio-908, ¶ 15 (9th Dist.), quoting State v. Martinez, 2013-
Ohio-3189, ¶ 16 (9th Dist.).
{¶26} Furthermore, “[a] defendant is not entitled to a reversal on manifest
weight grounds merely because inconsistent evidence was presented at trial.” State
v. Campbell, 2008-Ohio-4831, ¶ 23 (10th Dist.). The trier of fact “‘“may take note
of the inconsistencies and resolve or discount them accordingly, [but] such
inconsistencies do not render [a] defendant’s conviction against the manifest weight
or sufficiency of the evidence.”’” State v. Ealy, 2016-Ohio-1185, ¶ 19 (10th Dist.),
quoting State v. Samatar, 2003-Ohio-1639, ¶ 113 (10th Dist.), quoting State v.
Craig, 2000 WL 297252, *3 (10th Dist. Mar. 23, 2000).
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{¶27} After reviewing the evidence, we conclude that the jury did not lose
its way and create such a manifest miscarriage of justice in its witness-credibility
determination. Indeed, the jury heard Sorrell’s testimony, including the
inconsistency regarding the precise point of impact, and was free to conclude that
this minor discrepancy did not undermine the core of her testimony—that is, that
Shipley struck her with the shopping cart in his attempt to flee. Furthermore, the
jury was able to weigh her testimony against the video evidence of the incident and
it was entitled to resolve any conflicts to determine that force was used. Decisively,
the jury’s decision to credit Sorrell’s account is a classic credibility determination
that we will not second-guess.
{¶28} Shipley further claims the weight of the evidence—specifically the
lack of injury and Sorrell’s stated lack of fear—shows the contact was merely
incidental. While the jury heard this evidence, it was also instructed on the objective
legal standard for force. The jury’s conclusion that using a (full) shopping cart to
strike a store employee during an attempt to flee constitutes force is a rational
finding based on the law. The act of physical resistance itself, not the resulting harm
or the victim’s subjective reaction, is the key. Therefore, the jury’s decision to give
more weight to the physical act over the lack of resulting injury or lack of fear was
not unreasonable.
{¶29} For these reasons, we conclude that the trier of fact did not clearly lose
its way and create a manifest miscarriage of justice that Shipley’s robbery
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conviction must be reversed and a new trial ordered. Thus, Shipley’s robbery
conviction is not against the manifest weight of the evidence.
{¶30} Shipley’s first and second assignments of error are overruled.
Third Assignment of Error
Defendant’s Right To A Fair Trial Was Prejudiced By Prosecutorial Misconduct.
{¶31} In his third assignment of error, Shipley argues that he was deprived
of a fair trial due to prosecutorial misconduct. Specifically, he argues that the
prosecutor made several improper comments during closing argument that
prejudiced the outcome of his trial.
{¶32} “‘Prosecutors are afforded considerable latitude in closing
argument.’” State v. Rasawehr, 2020-Ohio-429, ¶ 12 (3d Dist.), quoting State v.
Encarnacion, 2017-Ohio-5530, ¶ 9 (10th Dist.). A prosecutor may comment on
what the evidence has shown and the reasonable conclusions that can be drawn from
it. Id. See also State v. Leonard, 2004-Ohio-6235, ¶ 159 (“A prosecutor may state
an opinion if based on evidence presented at trial.”). “However, a prosecutor may
not express his personal belief or opinion as to the credibility of a witness, the guilt
of an accused, or allude to matters that are not supported by admissible evidence.”
Encarnacion at ¶ 9.
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{¶33} “‘The test regarding prosecutorial misconduct in closing arguments is
whether the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant.’” Rasawehr at ¶ 9, quoting Encarnacion at ¶ 10.
“‘A prosecutor’s isolated comments are not to be taken out of context and given
their most damaging meaning.’” Id., quoting Encarnacion at ¶ 9. “‘Instead, an
appellate court must review a closing argument in its entirety to determine whether
prejudicial error occurred.’” Id., quoting Encarnacion at ¶ 9.
{¶34} In this case, Shipley argues he was denied a fair trial because the
prosecutor, during closing arguments, shifted the burden of proof to the defense by
misstating the law, commented on his decision not to testify, and improperly
vouched for Sorrell’s credibility.
Misstatements of Law
{¶35} We will first address Shipley’s claim that the prosecutor’s closing
arguments improperly shifted the burden of proof to the defense through
misstatements of the law. He points to three specific statements made by the
prosecutor. The prosecutor’s first statement was, “There is no reason to mention
the severity of this offense as far as any consequence except that he wants you to go
back there and consider what the punishment will be, if your verdict is guilty. He
is asking you to disregard your oath.” (Oct. 29, 2024 Tr. at 46). The prosecutor
continued, “He wants you to judge the State’s evidence contrary to what the Court
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is going to tell you and the oath that you took is that you will follow the court not
[Shipley].” (Id. at 47). The prosecutor concluded, “So, if there was something
different that he said that would contradict, then [Shipley] could have subpoenaed
him and had him come in and testify.” (Id.). Shipley objected to each of the
prosecutor’s comments, and his objections were overruled by the trial court.
{¶36} Importantly, Shipley failed to articulate any specific prejudice as a
result of these remarks. Compare State v. Abdullahi, 2024-Ohio-418, ¶ 37 (10th
Dist.). Notwithstanding Shipley’s failure to present an argument to this court, the
trial court instructed the jury that closing arguments are not evidence and as to the
legal concept of proof beyond a reasonable doubt. “[A] jury is presumed to follow
the instructions of the trial court.” Id. Thus, even if we assume without deciding
that the statements were improper, Shipley failed demonstrate that the prosecutor’s
remarks prejudicially affected his substantial rights since the trial court properly
instructed the jury on the law applicable to the burden of proof. Accord id.
Decision Not To Testify
{¶37} Next, Shipley asserts that the prosecutor improperly commented on
his decision not to testify. “Direct comments on a defendant’s failure to testify
violate the Fifth Amendment’s self-incrimination clause.” State v. Smith, 2023-
Ohio-4565, ¶ 137 (2d Dist.). “However, ‘[a] reference by the prosecutor in closing
argument to uncontradicted evidence is not a comment on the accused’s failure to
testify, where the comment is directed to the strength of the state’s evidence and not
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to the silence of the accused, and the jury is instructed not to consider the accused’s
failure to testify for any purpose.’” Id., quoting State v. Ferguson, 5 Ohio St.3d 160
(1983), paragraph one of the syllabus.
{¶38} In support of his argument that the prosecutor improperly commented
on his decision not to testify in his defense, Shipley directs us to the prosecutor’s
statement that, “[b]ut the only evidence that was put forth was from the State. And
[Shipley] has the absolute right to not take the stand and you are not and I am asking
you not to hold that against him in any way, shape or form. But I am pointing out
that [Shipley] has the opportunity to rebut the evidence from the State in other ways.
(Oct. 29, 2024 Tr. at 9-10). Following Shipley’s overruled objection, the prosecutor
continued, “Now I’m not asking you to consider the fact that he didn’t testify. He
has a Constitutional right. But, if there are other reasons for which you should not
have believed the State’s evidence, [Shipley] had an opportunity to present that.”
(Id. at 10).
{¶39} Decisively, the prosecutor’s comments were directed at the strength of
the State’s case and the uncontradicted nature of the evidence, not at Shipley’s
decision to remain silent. Accord State v. Hall, 2014-Ohio-2094, ¶ 22 (2d Dist.).
Indeed, the fact that Shipley may have been the only person who could have
contradicted the testimony of the witness does not change our analysis. Id.
Moreover, the trial court instructed the jury not to consider Shipley’s decision not
to testify for any purpose, and, as we previously stated, juries are presumed to follow
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the trial court’s instructions. Id. Therefore, we conclude that the prosecutor’s
remarks were not improper in this regard.
Witness Vouching
{¶40} Finally, we turn to Shipley’s claim that the prosecutor improperly
vouched for the credibility of the State’s key witness, Sorrell. “The law is clear that
‘[i]t is improper for a prosecutor to vouch for the credibility of a witness at trial.’”
State v. Williams, 2024-Ohio-5076, ¶ 20 (1st Dist.), quoting State v. Myers, 2018-
Ohio-1903, ¶ 145. “Vouching occurs when the prosecutor implies knowledge of
facts outside the record or places his or her personal credibility in issue.” Myers at
¶ 145. “This includes expressing a personal belief or opinion regarding a witness’s
credibility.” Williams at ¶ 20. “A prosecutor may, however, ‘comment on
“considerations that the jury could properly consider in evaluating [a witness’s]
credibility: his demeanor, consistency, and opportunity to observe, as well as the
extent to which other evidence corroborated his testimony.’” Id., quoting State v.
Hayes, 2020-Ohio-5322, ¶ 43 (1st Dist.), quoting Myers at ¶ 147.
{¶41} Here, Shipley identifies two specific remarks. In the first instance, the
prosecutor stated:
So, when you go back there, if you find yourself not believing the testimony or not believing the videos, you have to say why not? The only evidence before me, the only testimony before me is that they were telling the truth and that these videos had not been changed or altered in any way. So, the evidence says absolutely true.
(Oct. 29, 2024 Tr. at 9). Shipley further directs us to the prosecutor’s statement:
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So, why would she lie? People can lie. But why would she lie? If you don’t believe that, you need to ask yourself why don’t I believe it? What is that an untrue statement? She had no fog in her memories as to whether or not she was actually struck. Was it on the foot? Was it on the hip? Her statement at the time says that she was hit.
(Id. at 20).
{¶42} Because trial counsel did not object to these statements, they are
waived absent plain error. Accord State v. Stevens, 2016-Ohio-446, ¶ 54 (3d Dist.).
“Crim.R. 52(B) governs plain-error review in criminal cases.” State v. Bagley,
2014-Ohio-1787, ¶ 55 (3d Dist.). “A court recognizes plain error with the utmost
caution, under exceptional circumstances, and only to prevent a miscarriage of
justice.” State v. Smith, 2015-Ohio-2977, ¶ 63 (3d Dist.). “We may reverse only
when the record is clear that defendant would not have been convicted in the absence
of the improper conduct.” Id. Accordingly, Shipley must show that, absent the
prosecutors’ statements, the outcome of his trial would be different. Stevens at ¶ 55.
See also In re J.G., 2025-Ohio-1933, ¶ 48 (8th Dist.) (acknowledging that “the test
for plain error and prosecutorial misconduct are essentially the same”).
{¶43} When evaluating the prosecutor’s closing remarks, it appears the
prosecutor was not improperly vouching for the witness, but rather was prompting
the jurors to analyze the evidence. See State v. Howell, 2016-Ohio-7749, ¶ 30 (5th
Dist.). Indeed, the prosecutor’s statements, while coming close to expressing a
personal opinion, were ultimately directed at urging the jury to fulfill its role of
determining the credibility of the witnesses based on the evidence presented in
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court. See State v. Sommerfield, 2007-Ohio-6427, ¶ 7 (3d Dist.). This is a crucial
function of the jury and falls within the bounds of a proper closing argument. See
State v. Lester, 2008-Ohio-6070, ¶ 43 (3d Dist.). Consequently, we reject Shipley’s
contention that the prosecutor improperly vouched for Sorrell’s credibility during
closing arguments. Thus, the prosecutor’s statements did not amount to plain error.
{¶44} Shipley’s third assignment of error is overruled.
{¶45} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WALDICK, P.J. and WILLAMOWSKI, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Juergen A. Waldick, Judge
John R. Willamowski, Judge
DATED: /hls
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