[Cite as State v. Yelton, 2025-Ohio-2391.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO, CASE NO. 17-24-11 PLAINTIFF-APPPELLEE,
v.
JOSEPH L. YELTON, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Shelby County Municipal Court Trial Court No. 24CRB00172
Judgment Affirmed
Date of Decision: July 7, 2025
APPEARANCES:
Katherine Ross-Kinzie for Appellant
David M. Busick for Appellee Case No. 17-24-11
WALDICK, P.J.
{¶1} Defendant-appellant, Joseph Yelton (“Yelton”), appeals the August 8,
2024 judgment of conviction and sentence entered against him in the Sidney
Municipal Court, following a jury trial in which Yelton was found guilty of
Resisting Arrest and Violating Protection Order. For the reasons that follow, we
affirm.
Procedural History
{¶2} This case originated on April 3, 2024, when two criminal complaints
were filed against Yelton in the trial court. In those complaints, Yelton was charged
with Resisting Arrest, a second-degree misdemeanor in violation of R.C.
2921.33(A), and Violating Protection Order, a first-degree misdemeanor in
violation of R.C. 2919.27(A). On April 12, 2024, Yelton filed a written plea of not
guilty.
{¶3} On August 8, 2024, a jury trial was held in the case. At the close of the
trial, the jury returned verdicts finding Yelton guilty of both charges. The trial court
accepted the verdicts and sentenced Yelton to 30 days in jail for the resisting arrest
charge and to 150 days in jail for the protection order violation, with the sentences
to be served consecutively.
{¶4} On September 6, 2024, Yelton filed the instant appeal, in which he
raises three assignments of error for our review.
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First Assignment of Error
The trial court violated Joseph Yelton’s due-process rights when it convicted him of resisting arrest without legally sufficient evidence.
Second Assignment of Error
Mr. Yelton’s convictions for violating a protection order and for resisting arrest are not supported by the manifest weight of the evidence.
Third Assignment of Error
Prosecutorial misconduct denied Joseph Yelton a fair trial and due process of law.
First and Second Assignments of Error
{¶5} As the first and second assignments of error both require a review of
the evidence presented at trial, we shall jointly address those assignments of error.
{¶6} The trial record reflects that the prosecution presented the testimony of
five witnesses to the jury, in addition to admitting several exhibits. The defense
presented the testimony of one witness and admitted one exhibit. Further, the
parties stipulated that, on March 29, 2024, Yelton had been served with a valid civil
protection order issued by the Shelby County Court of Common Pleas, a copy of
which was introduced in evidence.
{¶7} With regard to the evidence presented by the prosecution, the state’s
first witness at trial was Officer Aaron Wesbecher, a 20-year veteran of the City of
Sidney Police Department. Wesbecher testified that, on April 2, 2024, he was on
duty, working day shift, when he was dispatched to a disturbance in an alley off
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Vandemark Road in Sidney, with the alleyway being located between Precision Car
Wash and Pizza Hut. While Wesbecher was enroute to that location, dispatch
advised that the caller was Paula L. (“Paula”) and that Yelton was one of the
involved parties. During his trial testimony, Wesbecher identified audio-video
footage recorded by his body camera during his interaction with the parties at the
car wash, and that video recording was admitted in evidence and played for the jury
at trial. The contents of that recording, along with Wesbecher’s testimony,
established that, upon arriving at the car wash on April 2, 2024, Wesbecher first
spoke with Paula. Paula advised that Yelton had attempted to swing a knife at her
and her significant other, Michael Payne. However, Wesbecher testified at trial that,
under the circumstances, Paula’s allegation regarding the knife appeared to have
been false. Wesbecher also identified a civil protection order issued by the Shelby
County Court of Common Pleas on March 29, 2024, which was in effect on April
2, 2024. That protection order had been obtained by Paula against Yelton and,
among other things, required Yelton to stay away from Paula and to not be within
500 feet of her, wherever she may be found. Officer Wesbecher testified that, on
April 2, 2024, he ultimately arrested Yelton in the area of the car wash because
Yelton was well within 500 feet of Paula and did not leave the area immediately, as
required by the terms of the protection order. Wesbecher also identified an aerial
map depicting the car wash location and the alleyway between the car wash and
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Pizza Hut, which corroborated Wesbecher’s testimony that Yelton’s truck had been
parked approximately 150 feet from where Paula was located at the time.
{¶8} Paula L. testified that she has known Yelton for 16 or 17 years, and that
she has a valid civil protection order against him that was issued by the Shelby
County Court of Common Pleas. Paula testified that on April 2, 2024, at
approximately 12:30 p.m., she was at Precision Car Wash on Vandemark Road,
vacuuming her car. With her was her significant other, Michael, and her son and
granddaughter. She heard Michael say something, which made her look up, and
that is when she noticed Yelton driving his red truck, pulling into the alley that runs
right by the car wash, in between that business and Pizza Hut. Paula testified that
she looked up and made eye contact with Yelton. Yelton then drove down the alley
a bit further and stopped his car in front of the fourth stall of the carwash, parking
outside the stall. Paula testified that Yelton then got out of his vehicle and walked
towards her. No words were exchanged between the two of them, but Yelton then
got into an altercation with Michael. On cross-examination, Paula was questioned
about the fact she had told the responding officer that day that Yelton had swung a
knife at her. In response, Paula testified that Yelton made a gesture with a knife in
Michael’s direction, while Paula was walking over to help Michael.
{¶9} Another prosecution witness was James Slife, an employee of Precision
Car Wash. Slife testified that he was working at the car wash on April 2, 2024 when
an incident occurred in the parking lot. Slife testified that a man and a woman were
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standing at the vacuum cleaner when a red pickup truck went by going west, then
turned around and came back east-bound, and stopped near the Pizza Hut and then
someone in the truck started yelling. Slife testified that the woman by the vacuum
stayed where she was because it looked like she had her hands full with the children
she had with her, but the man with her left the vacuum area and went towards the
pickup truck. That man appeared to be angry and a verbal altercation ensued when
he approached the truck. Slife was not able to identify the male who was driving
the pickup truck, nor did Slife remember seeing the male get out of the pickup truck;
however, Slife testified that a woman in the pickup truck got out and had something
in her hand. Slife testified that the first man, the one who had initially been over by
the vacuums, approached that woman but did not physically engage with
her. Finally, Slife acknowledged that he was unable to remember every detail of
the incident.
{¶10} Sergeant Scott White of the Sidney Police Department was the state’s
fourth witness at trial. White testified that on April 2, 2024, at approximately 12:30,
he was dispatched to an incident near Kentucky Fried Chicken (“KFC”) in
Sidney. White testified that the nature of the call was a disturbance involving a
protection order violation. White’s body camera was activated upon his arrival at
that location, and video footage from the camera was identified by White at trial and
played for the jury. In conjunction with that video being played, Sergeant White
testified that Officer Wesbecher utilized a “1095” radio code during the call, which
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means to make an arrest. White testified that another officer on scene, Officer
Dembski, told Yelton that he was under arrest. Sergeant White testified that Yelton
was not compliant after being told he was under arrest. White testified that while
Yelton did not physically resist arrest, he walked away from the officers and toward
his own truck. White testified that when Yelton headed for his truck after being told
he was under arrest, White was worried that Yelton might try to flee the scene. As
a result, Yelton was threatened with TASER deployment due to his failure to
comply with the officers. White testified that Yelton eventually complied, and was
taken into custody by Officer Dembski. White testified that, based on his twenty
years of experience, when an arrest command is issued to an individual by an officer,
ideally the individual would do as instructed, and turn around and place their hands
behind their back. Finally, Sergeant White testified that the distance from the
furthest point of the car wash to the middle of KFC is 397 feet, meaning that even
Yelton being at KFC would be a violation of a protection order if the protected party
was at the car wash.
{¶11} The prosecution’s final witness was Deputy Frank Bleigh of the
Shelby County Sheriff’s Office. Bleigh was working in that capacity on April 2,
2024, at approximately 12:30, when he heard radio traffic relating to an incident
occurring in the area of the KFC, Pizza Hut, and the car wash on Vandemark Road
in Sidney. As a result, Bleigh drove to that location, where Sidney Police
Department officers were already present. After speaking briefly to one of the
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witnesses, Bleigh observed Officer Dembski moving towards Yelton in order to
arrest him. As Deputy Bleigh went to assist Officer Dembski, Bleigh drew his
TASER after he observed Yelton resisting Dembski’s orders relating to the
arrest. Bleigh testified that while Yelton did not actively fight the officers while
resisting arrest, Yelton would not comply with Dembski’s order to turn around and
place his hands behind his back. Instead, Yelton actually put his arms on the side
of the pickup truck bed. Bleigh testified that, after he drew his TASER, Yelton
ultimately complied with the officers’ commands relating to their attempt to make
the arrest. Bleigh confirmed that while he drew his TASER during the incident, it
was not deployed.
{¶12} At trial, once the prosecution rested after presenting its case, Yelton
took the stand in his own defense. Yelton testified that on April 2, 2024, he and his
wife were on their way to Walmart in Sidney. While driving down Vandemark
Road, Yelton said he noticed a number of cars up ahead of him. Because Yelton
was in a hurry, he decided to cut through the alley between the car wash and Pizza
Hut. Yelton testified that, while driving through the alley, he heard someone yelling
at him. Yelton testified that he flipped off the unknown person and kept driving,
when suddenly Michael Payne ran out in front of Yelton’s truck, screaming and
yelling at Yelton. Yelton’s wife then jumped out of the truck. Yelton testified that
he could not get his phone out to record what was happening, and so he drove on to
some parking spots that are located back behind one of the buildings, where Yelton
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sat to wait for the police. Yelton testified that the police arrived and, after speaking
to them, he was told he was under arrest. Yelton testified that he asked the police
why he was being arrested and they would not tell him. Yelton denied ever entering
the parking lot area in front of the car wash and testified that, while he saw a man
standing there, he did not pay attention to who it was until Payne ran up in front of
Yelton’s truck. Yelton testified that he never saw Paula. Yelton testified that he
was able to record part of the incident on April 2, 2024, and that recording was then
played for the jury at trial. Yelton testified that the car Paula and Michael had been
standing by was not Paula’s car and so he assumed it was Michael’s. With regard
to his interaction with the police officers when they approached him and attempted
to arrest him, Yelton testified that “They come up like that, and I don’t – I don’t like
people trying to get up behind me like that. I just – I don’t like it, so I tried to back
away from that situation so that way they weren’t behind me and I could see
everything.” (Tr., 155). Yelton testified that after being told he was under arrest, he
then started walking towards his pickup truck, while demanding to be told why he
was being arrested. Yelton testified that the officers followed him and that one
officer pulled out his TASER, and so Yelton grabbed onto his truck so he would not
fall to the ground if the TASER was used on him. Yelton acknowledged that, after
asking why he was being arrested and not getting an immediate answer, he was told
a few seconds later that the arrest was for violating a protection order. On cross-
examination, Yelton admitted that, upon pulling into the alleyway by the car wash,
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he stopped in the alley and got out of his truck. Yelton testified that he only did that
because he was forced by Payne to stop his vehicle.
{¶13} In the first assignment of error, Yelton argues that his conviction for
Resisting Arrest is not based on sufficient evidence. In the second assignment of
error, Yelton argues that his convictions for Resisting Arrest and Violating
Protection Order are both against the manifest weight of the evidence.
{¶14} It is well established that “[t]he legal concepts of sufficiency of the
evidence and weight of the evidence are both quantitatively and qualitatively
different.” State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the
syllabus.
{¶15} “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 (1991), paragraph two of the syllabus. Consequently, “[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. Williams, 2024-Ohio 2307, ¶
21 (3d Dist.), quoting State v. Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.).
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{¶16} By contrast, when reviewing whether a verdict was against the
manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and
examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). In doing so, an appellate court must review 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 factfinder “clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.” Id. Nevertheless, when assessing a manifest-
weight challenge, a reviewing court must allow the trier-of-fact appropriate
discretion on matters relating to the credibility of the witnesses. State v. Stewart,
2023-Ohio-253, ¶ 11 (3d Dist.), citing 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, 3d Dist. Allen No. 2012-
Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524, ¶ 119.
{¶17} In the instant case, Yelton was convicted of Resisting Arrest in
violation of R.C. 2921.33(A), which provides that “[n]o person, recklessly or by
force, shall resist or interfere with a lawful arrest of the person or another”, and of
Violating Protection Order in violation of R.C. 2919.27(A)(2), which provides that
“[n]o person shall recklessly violate the terms of * * * [a] protection order issued
pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code[.]”
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{¶18} In the first assignment of error on appeal, Yelton argues that, as to his
conviction for Resisting Arrest, there was insufficient evidence to prove he acted
recklessly or by force.
{¶19} Pursuant to R.C. 2921.33(A), supra, a person can resist arrest either
recklessly or by force. “A person acts recklessly when, with heedless indifference
to the consequences, the person disregards a substantial and unjustifiable risk that
the person’s conduct is likely to cause a certain result or is likely to be of a certain
nature.” R.C. 2901.22(C). The term “force” means “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” R.C.
2901.01(A)(1).
{¶20} In the instant case, the prosecution did not suggest at trial, and does
not argue on appeal, that Yelton acted forcibly in resisting arrest. Rather, the state
asserts – as it did in the trial court – that, on the facts of this case, Yelton recklessly
resisted or interfered with his arrest.
{¶21} The Ohio Jury Instructions for the offense of Resisting Arrest define
“resist or interfere” as meaning “to oppose, obstruct, hinder, impede, interrupt, or
prevent an arrest by a law-enforcement officer.” 2 OJI-CR 521.33 (Rev. May 22,
2021).
{¶22} “[D]elaying an arrest by preventing the seizure or detention of a person
may constitute resisting arrest because it constitutes reckless resistance.” State v.
Hicks, 2011-Ohio-2769, ¶ 19 (9th Dist.). “By committing an act giving rise to the
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delay, a person may be proceeding with heedless indifference to the consequences
and disregarding a known risk that his conduct will prevent arrest.” Id.
{¶23} In light of the applicable legal definitions, we find in the instant case
that there was sufficient evidence presented at trial that, when viewed in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of recklessly resisting arrest proven beyond a reasonable doubt.
{¶24} The evidence in the record, particularly the multiple audio-video
recordings of Yelton’s arrest, reflects that Yelton was standing outside of his truck
at the point that the police officers began slowly moving toward him in order to take
Yelton into custody. As the officers were approaching Yelton, he began backing
away from the officers. After clearly being told that he was being placed under
arrest, Yelton said “nope, nope, I ain’t doing it”, and then walked away from the
officers, toward the driver’s side of his parked truck. Yelton continued to ignore
the lawful arrest commands issued by the police, and then walked to the back of his
truck, where he refused to turn around and continued to move his arms around,
placing them in multiple positions, but not behind his back as instructed by the
officers. While doing so, Yelton also continued to argue with the officers about the
situation. Yelton’s refusal to comply with the officers’ attempt to arrest him
continued for approximately 40 seconds and it was only after one officer finally
pointed a TASER at Yelton that he submitted to the officers’ instructions and
permitted himself to be taken into custody.
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{¶25} Such evidence, if believed, would convince the average mind of the
defendant’s guilt of Resisting Arrest beyond a reasonable doubt, and we therefore
find that there was sufficient evidence to convict Yelton for recklessly resisting
arrest.
{¶26} In the second assignment of error, Yelton argues that his convictions
for Resisting Arrest and Violating Protection Order were against the manifest
weight of the evidence.
{¶27} With regard to the resisting arrest conviction, Yelton again maintains
that he did not recklessly resist arrest and argues that the jury lost its way when it
discounted his trial testimony and found him guilty of that charge.
{¶28} As previously detailed above, Yelton testified at trial that, when
approached by the officers, he tried to back away because he did not want the
officers behind him and he wanted to be able to see everything. Yelton also testified
that he walked away from the officers because they would not tell him why he was
under arrest, although he acknowledged that he was informed a few seconds later
that the arrest was for violating a protection order. Yelton also suggested in his trial
testimony that he failed to comply with the officers because he was scared that he
would be tased and therefore he grabbed onto his truck to avoid falling to the ground
if the TASER was used on him.
{¶29} Contrary to Yelton’s claim on appeal, these “explanations” provided
at trial by Yelton do not render his resisting arrest conviction against the manifest
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weight of the evidence. Indeed, Yelton’s testimony at trial – if believed – actually
served to confirm that he not only recklessly resisted arrest by trying to delay and
avoid the same, but that he did so purposely. Moreover, to the extent that the jury
may have discounted Yelton’s testimony, as he argues on appeal, we note that the
finder of fact is free to believe all, some, or none of the testimony of each witness.
State v. Harvey, 2020-Ohio-329, ¶ 47 (3d Dist.).
{¶30} After thoroughly examining the evidence in the record before us, we
cannot say that the jurors lost their way in finding Yelton guilty of Resisting Arrest,
or that the guilty verdict on that charge was against the manifest weight of the
evidence.
{¶31} With regard to the conviction for Violating Protection Order, Yelton
similarly maintains that he did not recklessly violate the protection order at
issue. He argues that the jury lost its way when it apparently found the victim’s
testimony more credible than that given by Yelton.
{¶32} As noted above, R.C. 2919.27(A) prohibits the reckless violation of a
protection order. Again, “[a] person acts recklessly when, with heedless
indifference to the consequences, the person disregards a substantial and
unjustifiable risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature.” R.C. 2901.22(C). “A person is reckless with respect
to circumstances when, with heedless indifference to the consequences, the person
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disregards a substantial and unjustifiable risk that such circumstances are likely to
exist.” Id.
{¶33} In this case, it is uncontested that Paula had a valid protection order
against Yelton, prohibiting him from being within 500 feet of Paula, and requiring
him to depart immediately if he accidentally came in contact with her in any public
or private place. (Plaintiff’s Exhibit D, emphasis sic.)
{¶34} Paula testified that on April 2, 2024, she was at the car wash when
Yelton came driving by on the alleyway that ran alongside the business
premises. Testimony and exhibits admitted at trial established that Paula’s position
was well within 500 feet from where Yelton drove by her and also from the location
where he ultimately parked his vehicle. While Yelton testified at trial that he did
not see Paula at the car wash, Paula testified that she made eye contact with Yelton,
and that he initially got out of his truck and walked toward her and her boyfriend.
Additionally, a seemingly impartial witness, James Slife, testified that Yelton drove
by once and then turned around and came back to the general area where Paula and
her boyfriend were located.
{¶35} Given that evidence, we cannot conclude that the jury lost its way and
created such a manifest miscarriage of justice as to its credibility determination that
would require reversal of Yelton’s conviction relating to the protection order
violation. While the credibility of the witnesses may have been the primary factor
in determining guilt as to that charge, “the choice between credible witnesses and
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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.” State v. White,
2017-Ohio-1488, ¶ 50 (3d Dist.). As noted above, the finder of fact is free to believe
all, some, or none of the testimony of each witness. State v. Harvey, supra, at ¶ 47.
{¶36} As a result, after having reviewed the record in its entirety, weighed
the evidence and all reasonable inferences, we conclude that Yelton’s conviction for
Violating Protection Order is not against the manifest weight of the evidence.
{¶37} The first and second assignments of error are overruled.
{¶38} In the third assignment of error, Yelton asserts that his conviction must
be reversed due to prosecutorial misconduct. Specifically, Yelton argues that the
prosecutor impermissibly relied on facts not in evidence when addressing Yelton’s
credibility during the state’s final closing argument.
{¶39} “The conduct of a prosecuting attorney during trial cannot be made a
ground of error unless the conduct deprives defendant of a fair trial.” State v.
Apanovitch, 33 Ohio St.3d 19, 24 (1987). Prosecutorial misconduct constitutes
reversible error only in rare instances. State v. Keenan, 66 Ohio St. 3d 402, 405
(1993). If established, misconduct on the part of the prosecution may violate a
defendant’s due process rights; therefore, the “touchstone of the analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Thompson, 2014-
Ohio-4751, ¶ 162, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). The effect
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of any misconduct must be considered in light of the whole trial. State v. Durr, 58
Ohio St.3d 86, 94 (1991).
{¶40} “A prosecutor is entitled * * * to ‘wide latitude in summation as to
what the evidence has shown and what reasonable inferences may be drawn
therefrom.’” State v. McKelton, 2016-Ohio-5735, ¶ 274, quoting State v. Stephens,
24 Ohio St.2d 76, 82 (1970). “The test regarding prosecutorial misconduct during
closing arguments is whether the remarks were improper and, if so, whether they
prejudicially affected the substantial rights of the defendant.” State v. Manley, 2011-
Ohio-5082, ¶ 14 (3d Dist.).
{¶41} “In making this determination, an appellate court should consider
several factors: (1) the nature of the remarks, (2) whether an objection was made by
counsel, (3) whether corrective instructions were given by the court, and (4) the
strength of the evidence against the defendant.” State v. Braxton, 102 Ohio App.3d
28, 41 (1995). “We evaluate the allegedly improper statements in the context of the
entire trial.” State v. Klein, 2013-Ohio-2387, ¶ 60 (3d Dist.), citing State v. Treesh,
90 Ohio St.3d 460, 464 (2001).
{¶42} In the instant case, during the state’s final closing argument, the
prosecutor argued that Yelton’s testimony about the events at issue was not credible
for several reasons. While making that argument, the prosecutor addressed Yelton’s
testimony that suggested he only drove by the car wash on the day in question
because he was trying to avoid traffic at an intersection by cutting through the alley.
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In asserting during closing argument that such testimony was not credible, the
prosecutor stated as follows:
If anyone suggests to me that the best way to get through there, especially when McDonald’s was closed and the alley behind McDonald’s was closed because McDonald’s got tore down – some of you may recall that from your independent recollection. The alley was closed. So how do you beat a light by going back down an alley and turning down McDonald’s when McDonald’s parking lot was closed for construction?
(Tr., 190).
{¶43} On appeal, Yelton argues that there was no evidence presented at trial
relating to McDonald’s being closed and, therefore, the prosecutor’s argument was
improper and prejudicial.
{¶44} In analyzing Yelton’s prosecutorial misconduct claim, we first note
that there was no objection at trial to the portion of the state’s closing argument with
which Yelton assigns error on appeal. Thus, as to the remarks at issue, Yelton’s
failure to object forfeited all but plain error. See, e.g., State v. Wilks, 2018-Ohio-
1562, ¶ 171. To establish plain error under Crim.R. 52(B), the party asserting error
must demonstrate that an error occurred, that the error was plain, and that the error
affected his substantial rights. State v. Bond, 2022-Ohio-4150, ¶ 17. The Supreme
Court of Ohio has interpreted the third prong of that standard to mean that the error
must have affected the outcome of the trial. Id.
{¶45} In the instant case, upon reviewing the closing remarks at issue in the
context of the overall record, we find that the remarks fall well short of plain error.
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{¶46} While the record supports Yelton’s claim that there was no trial
testimony about the McDonald’s having been closed and torn down, there was some
evidence introduced about a McDonald’s located in the vicinity of the location at
issue and the fact that there had been some construction in that area at some point.
Whether the prosecutor was referring to what he mistakenly believed to be in
evidence or to information outside of the evidence is not entirely clear from the
phrasing of the comments at issue.
{¶47} Regardless, to the extent the prosecutor specifically suggested that the
jury consider the status of the purportedly closed McDonald’s parking lot, or access
thereto, in evaluating the credibility of Yelton’s testimony, the prosecutor’s
comments may constitute error as such argument “invites the jury to speculate on
facts not in evidence.” State v. Wogenstahl, 75 Ohio St.3d 344, 357. However, those
comments were mitigated by the trial court’s instruction to the jury that closing
arguments by counsel are not evidence. State v. Garrett, 2022-Ohio-4218, ¶ 158,
citing State v. Kirkland, 2020-Ohio-4079, ¶ 117.
{¶48} More importantly, after examining the prosecutor’s statements under
the four factors set forth above, we do not find that the statements constituted plain
error. Yelton has failed to demonstrate that the prosecutor’s comments affected
Yelton’s substantial rights or that, but for the statements, the jury would have found
Yelton not guilty. As detailed in our analysis of the first and second assignments of
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error, supra, the prosecution presented more than ample other evidence at trial upon
which the jury could find Yelton guilty of the two offenses at issue.
{¶49} Thus, for all of those reasons, Yelton has failed to demonstrate
reversible prosecutorial misconduct with regard to closing arguments.
{¶50} The third assignment of error is overruled.
Conclusion
{¶51} Having found no error prejudicial to the defendant-appellant in the
particulars assigned and argued, the judgment of the Municipal Court of Sidney,
Ohio is affirmed.
MILLER and WILLAMOWSKI, J.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.
Juergen A. Waldick, Judge
Mark C. Miller, Judge
John R. Willamowski, Judge
DATED: /jlm
-22-