Broadview Hts. v. Thomas

[Cite as Broadview Hts. v. Thomas, 

.]

                                  COURT OF APPEALS OF OHIO

                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

S/O, CITY OF BROADVIEW HEIGHTS,                       :

                Plaintiff- Appellee,                  :
                                                              No. 112312
                        v.                            :

ROSS W. THOMAS,                                       :

                Defendant-Appellant.                  :



                                   JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: December 21, 2023


                         Criminal Appeal from the Parma Municipal Court
                                     Case No. 21CRB02239


                                               Appearances:

                Vincent Ruffa, Joseph Grandinetti, and Dean DePiero, for
                appellee.

                Darren L. Meade, for appellant.


MICHELLE J. SHEEHAN, J.:

                 Defendant-appellant Ross Thomas appeals his conviction from the

Parma Municipal Court for theft. Because we do not find that Thomas’s claim of

prosecutorial misconduct caused an unfair trial, we affirm his conviction.
                 PROCEDURAL HISTORY AND RELEVANT FACTS

               Ross Thomas was charged with one count of theft by deception in

violation of R.C. 2913.02(A)(3), a misdemeanor of the first degree, for taking a gold

coin at a coin show held on July 10, 2021, in Broadview Heights, Ohio. Thomas was

found guilty after a jury trial.

              At trial, the prosecutor for the city of Broadview Heights presented

testimony that Thomas took a coin from another dealer’s table and left money that

amounted to a fraction of the value of the coin. After being confronted about the

coin, Thomas refused to show the dealer or the coin show’s director the coin and

said he purchased the coin. Laura Cole testified that she went to the show to help

her partner, Brandon Marques, a coin dealer. Marques had coins for sale at the

show. He kept the coins in envelopes with prices written on the envelopes. The

envelopes were displayed in books at a vendor table. During the first hour of the

show, Cole watched Marques’s table while he was away. Thomas approached the

table and asked Cole about a particular coin. Cole said that she asked Thomas to

wait for Marques to return regarding his questions. When Cole wasn’t looking,

Thomas left $50 in currency on the table and left the area.

              James Baird testified that he also sold coins at the coin show at a table

next to Marques. He noticed that Cole was watching Marques’ table for him. Baird

said that Thomas came to his table and showed him a gold coin that Thomas said he

bought for $50. Baird didn’t think that price was possible. After Thomas left Baird’s

table, Cole came to him and asked if Thomas showed him a gold coin. Baird knew
the coin’s value was between $800 and $1,200, depending on the condition. Baird

stated that when he saw the coin, he didn’t see a marked price and that Thomas did

not elaborate on how he got the coin for $50.

            Cole testified that she approached Thomas, and he would not show her

the coin and ignored her. Marques testified that he returned to his table and Cole

told him what happened. Marques looked through his books and found that his

most valuable coin, priced at $1,150, was missing. Marques found and confronted

Thomas, telling Thomas that he believed Thomas stole a coin and asked to see the

coin. Thomas would not take the coin out of his pocket. Marques said there was no

way the coin was $50 and told Thomas to show him that the coin was priced at $50,

stating Thomas could keep the coin if it was. Thomas would still not take the coin

out of his pocket. The director of the coin show, John Rebic became involved, and

Marques testified that Thomas would not show him the coin either. After Marques

called the police, Marques saw Thomas leave the show as quickly as possible.

            During Marques’s cross-examination, a video that was made by

Thomas at the coin show was played. Marques identified his voice for the jury. The

video included Thomas’s interaction with Marques and with John Rebic.

            John Rebic testified he was approached by a security guard about a gold

coin. Rebic talked to Thomas and asked to see the coin because he was surprised a

gold coin would be priced at $50. Rebic stated that there was no way a gold coin

would be priced at $50. Thomas’s video was played during Rebic’s testimony. On

the video, Thomas was heard telling Rebic that Rebic can kick Thomas out of the
show if he had to, but he would not give the coin back. Rebic further testified that

during coin shows, no one leaves money on a table to buy coins, especially between

vendors.

             Without a resolution of the dispute between Marques and Thomas, the

police were called. Once the decision to call the police had been made, both Rebic

and Baird testified that Thomas packed up his belongings, went to his car, and sped

from the parking lot of the venue before police arrived.

             During Marques’s testimony, he was shown a picture of the coin in an

envelope with a price of $50 written on it. Marques denied pricing the coin at that

amount and testified he did not write the price, noting discrepancies in the envelope

around the coin and way the price was written. Marques also identified pictures of

his coin books to identify his handwriting and the manner in which he priced his

coins.

               Thomas testified at trial. At the onset of his testimony, Thomas

stated that he is a single dad with two children, is an Eagle Scout, and is an avid coin

collector. He said he works as a realtor and property manager. Thomas’s testimony

was in direct opposition to the prosecution’s witnesses. Thomas testified that he

purchased a gold coin from Cole and got a bargain. Thomas explained that Cole was

at Marques’s table, and he asked her to see the coin. He said he asked about the price

and that Cole verified the coin was priced at $50. Thomas said he handed her $50

and bought the coin.
             Thomas testified that at coin shows bargains could be found and he

recounted several bargains he found at previous shows. Thomas denied Cole and

Marques’s testimony that he took the coin. Rather, Thomas identified the picture of

the coin and envelope and indicated that it was priced at $50 and denied altering

the pricing on the envelope. Thomas did not dispute that he would not show Rebic

the coin he purchased, explaining that to do so would have been against his values.

He also explained that he left the show before police arrived because he was worried

about the police confiscating all his belongings that he brought to the show.

               During closing argument, the prosecutor asked that the jury consider

that actions speak louder than words and asked the jury to consider Thomas’s acts

of taking the coin and leaving money, his failure to show the coin to Rebic when

asked, and his departure when police were called as evidence of Thomas’s guilt. The

prosecutor asked the jury to compare the testimony between the witnesses and

stated that the situation was easily resolved if Thomas would have showed Rebic the

coin. In asking the jury to compare the testimony of the witnesses, the prosecutor

stated:

      PROSECUTOR: You heard the testimony. You — and I want you to
      analyze the difference between when someone like John Rebic
      testified, and someone like Ross Thomas testified. Everything John
      Rebic said, everything, no doubt in my mind that guy is as good as
      gold.

      DEFENSE COUNSEL: I’m going to object to the Ross — his
      characterization of Ross [inaudible].

      TRIAL COURT:        Overruled.    This is closing argument it’s not
      evidence.
               The prosecutor then contrasted the testimony, discussed the value of

the coin, and noted no witness stated that the gold coin would be priced at $50 as

claimed. The prosecutor discussed the pictures of the coin produced by Thomas

against the pictures of how Marques marked his coins. In addition to this line of

argument, the prosecutor characterized Thomas’s defense in the following manner:

      THE PROSECUTOR: * * * You know, one of the things that their
      defense is, is, no, I didn’t steal, I just took advantage of this person.
      That’s — that’s their defense, right? I didn’t steal it. I just happened
      to take advantage of her and he’s talking, I’m Mr. Eagle Scout. I’m Mr.
      Single Dad. Why do you think they’re saying that?

               After this statement, the trial court overruled an objection. The

prosecutor discussed Thomas’s testimony, noting that the jury would be able to

weigh the other witnesses’ credibility against Thomas’s. The prosecutor described

Thomas’s testimony, arguing:

      THE PROSECUTOR: * * * And boy, there are a lot of leaps you’re
      going to have to make if you want to believe that. That the coin was
      mistakenly marked wrong, that the girl who testifies, I don’t handle
      money, I never do, I never do it, just that one time that day decide to
      do it, that Laura Cole was totally lying, that James Baird was a liar,
      that Rebic was being dishonest, that Marques was being dishonest.

      Everybody was lying, except for the guy who’s saying, hey, I’m not
      stealing, I was just trying to distort [sic] this really, really, really, really
      good deal of this person. That’s okay.

      And when you use reason and plain old common sense, we take a step
      back. You’re going to hold one conclusion, that he’s guilty, that he
      took this coin, he deceived Laura Cole, Brandon Marques, he’s playing
      games and perhaps maybe he’s diluted [sic] himself to believe that he
      himself was in the right.
      But collectively as a jury, you need to analyze these actions.
      Everything he did screams, dishonestly, It screams dishonestly, you
      can’t believe a word he said. Just think when you’re deliberating, some
      of the lies he gave.

              In its instruction to the jury, the trial court stated:

      The evidence does not include the complaint, the opening statements,
      or the closing arguments of counsel. The opening statements and
      closing arguments of counsel are designed to assist you. They are not
      evidence.
      ***
      Closing arguments of counsel are designed to assist you. They are not
      evidence.
                              LAW AND ARGUMENT

              Thomas raises one assignment of error, which reads:

      The State of Ohio committed reversible error through prosecutorial
      misconduct, specifically by making multiple disallowable and unfairly
      prejudicial statements throughout the closing argument.

              Thomas argues he did not receive a fair trial because the prosecutor

interspersed personal opinions in the closing argument and gave admonitions to the

jury that they had little to deliberate because the prosecutor told the jury which

witnesses to believe and what to think.        Thomas argues specifically that the

prosecutor’s statements regarding Thomas’s career and experience were

unnecessary and an example of an “outlandish remark.” Thomas also argues the

prosecutor’s argument served to inflame the passions of the jury where the

prosecutor asked the jury to consider Thomas to be “a guy who just took advantage

of a pregnant woman.” Further, he argues that the prosecutor vouched for Rebic’s

testimony and inserted his own opinion when he argued Thomas was deluding
himself to believe he was in the right and stating Thomas’s action “scream

dishonesty.” The city argues that the prosecutor’s argument and remarks were not

improper and did not amount to misconduct or result in an unfair trial.

               Allegations of prosecutorial misconduct in closing argument are

reviewed to determine “‘whether the remarks were improper and, if so, whether they

prejudicially affected substantial rights of the defendant.’” State v. McAlpin, 

, 

, 

, quoting State v. Smith, 

, 

 (1984). A trial should only be reversed on the

grounds of prosecutorial misconduct “if the effect of the misconduct ‘permeates the

entire atmosphere of the trial.’” State v. Gibson, 8th Dist. Cuyahoga No. 98725,

, quoting State v. Tumbleson, 

, 

 (12th Dist.1995). “‘The touchstone of analysis is the fairness of the trial,

not the culpability of the prosecutor.’” State v. Gapen, 

, 2004-

Ohio-6548, 

, ¶ 92, quoting, Smith v. Phillips, 

, 

, 

 (1982).

               A prosecutor has wide latitude in closing argument and is free to

comment on what the evidence has shown and reasonable inferences that can be

drawn from that evidence. State v. Harris, 

, 

(8th Dist.).

               Arguments that are excessively emotional that tend to inflame a jury’s

sensibilities are improper. 

. “It is improper for an attorney to

express his or her personal belief or opinion as to the credibility of a witness or as to
the guilt of the accused.” State v. Williams, 

, 

(1997). When reviewing a claim of prosecutorial misconduct in closing argument,

the appellate court should consider “the nature of the remarks, whether an objection

was made by counsel, whether corrective instructions were given by the court, and

the strength of the evidence against the defendant.” 

.

               Thomas argues that the prosecutor vouched for Rebic’s testimony by

stating it was “as good as gold.” We agree. However, that comment was isolated

and the trial court immediately noted to the jury that the statement was not

evidence. Additionally, the prosecutor also reminded the jury during his closing

argument that it was to determine the credibility of the witnesses. As to the

complaint that the prosecutor improperly discussed Thomas’s statements about

being an Eagle Scout and his profession, we do not find statements regarding

Thomas’s testimony about himself and his accomplishments to be improper.

               The prosecutor described Thomas’s actions as dishonest, arguing that

those actions “screamed dishonesty” and his testimony was to be considered full of

lies. A prosecutor may argue that the evidence suggests the conclusion that a

defendant was lying, scheming, has ulterior motives for doing so. State v. Draughn,

, 

 (5th Dist.1992.) However, a prosecutor

cannot directly call a defendant a liar or state a belief that the defendant was lying.

 We recognize that a prosecutor has wide latitude in closing argument and that

“[w]hen a prosecutor states in closing argument that a defendant is lying and when

that statement is based on evidence within the record and not an expression of
personal belief or opinion, this court has found such statement to be proper.” State

v. Smith, 8th Dist. Cuyahoga No. 111870, 

 (citations omitted.)

Given the testimony from Cole, Baird, Rebic, and Marques as to what Thomas did

and his actions, the prosecutor’s remarks, although bordering on unacceptable

argument, were not wholly improper.

                We further find the prosecutor’s comment that Thomas’s defense

was that he got a bargain by taking advantage of a “pregnant woman” to not be so

inflammatory as to cause the jury to be improperly swayed. As to the allegations

that the closing argument was improper because it told the jury what to think, we

cannot say that in this case, the prosecutor’s closing arguments usurped the role of

the jury or relieved the jury of its duty to assess the credibility of the witnesses.

               We note there has been no complaint that the trial court failed to

properly instruct the jury. Further, when there was an objection during argument,

the trial court specifically stated that closing arguments were not to be considered

evidence. In reviewing the nature of the remarks, we note the prosecutor’s argument

generally contrasted the city’s witnesses’ testimony against Thomas’s testimony,

suggesting Thomas’s testimony and explanations were incredible. In regard to the

strength of the state’s case, the state presented several witnesses whose testimony

described Thomas’s actions in taking the coin; leaving a small amount of money;

refusing to show the coin and its pricing to Cole, Marques, and Rebic; and leaving

before police arrived. Thomas stated he purchased the coin and gave explanations

for his actions. In addition to the testimony, the jury had a recording of Thomas’s
interaction with Rebic. Further, the jury was able to contrast the picture of the coin

and its pricing as supplied by Thomas against images of Marques’s other coins.

               Having reviewed the prosecutor’s closing argument in its entirety

within the context of the entire trial, we cannot say that the closing argument was of

such impropriety that it permeated the entire atmosphere of the trial that would

necessitate a finding the trial itself was unfair.

               The sole assignment of error is overruled.

                                     CONCLUSION

               Thomas was convicted of theft after a jury trial. The conviction was

based on both witness testimony and other evidence. A prosecutor has wide latitude

in making a closing argument. In this case, the prosecutor sought to contrast the

prosecution witnesses’ testimony against Thomas’s testimony to suggest Thomas’s

testimony and his explanations for his actions were incredible. Although the

prosecutor improperly vouched for the credibility of a witness, we cannot say that

the closing argument was of such impropriety that it permeated the entire

atmosphere of the trial to necessitate a finding the trial was unfair. Because we do

not find that the prosecutor’s closing argument prejudicially affected Thomas’s

substantial rights, we affirm the judgment of the trial court.

               Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

municipal court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the

trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


__________________________________
MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, A.J., and
LISA B. FORBES, J., CONCUR