State v. Shipley

[Cite as State v. Shipley, 

.]




                       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, 

, 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, 

 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 

 (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, 

 (1st Dist.). See also State v. Berry, 

 (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, 

 (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,

 (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.), quoting State v. Hunter, 

.

                                       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, 

 (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,

 (2d Dist.), quoting State v. Brienzo, 

, *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).’”          

 quoting State v.

Tirabasso, 

, *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, 

 (7th Dist.) (concluding that appellant

“completed the theft, at the latest, when he exited the doors” of the store); 

 (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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Case No. 14-25-02


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, 

 (9th Dist.), quoting State v. Davis, 

 (1983), paragraph one of the syllabus. “Force is evaluated under an

objective standard.” 

 “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.’” 

 quoting State v. Sumlin, 

,

*2 (8th Dist. June 15, 2000). The actions and demeanor of a defendant may support

the conclusion that force was threatened.” 

 “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, 

 (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, 

, *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.” 

       {¶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, 

 (2d Dist.). Critically, Shipley’s arguments

that Sorrell was not injured or afraid are unavailing because the standard for force

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Case No. 14-25-02


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, 

 (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, 

 (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, 

(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 

. 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, 

 (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, 

 (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., 

, ¶ 79 (11th Dist.), quoting State v. Awan, 

 (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, 

, ¶ 44 (3d Dist.), quoting

State v. Bean, 

 (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, 

 (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, 

 (10th Dist.),

quoting State v. Samatar, 

, ¶ 113 (10th Dist.), quoting State v.

Craig, 

, *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.

                                 Standard of Review

       {¶32} “‘Prosecutors     are     afforded   considerable   latitude   in   closing

argument.’” State v. Rasawehr, 

 (3d Dist.), quoting State v.

Encarnacion, 

 (10th Dist.). A prosecutor may comment on

what the evidence has shown and the reasonable conclusions that can be drawn from

it. 

 See also State v. Leonard, 

, ¶ 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.”

.




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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.’” 

, quoting 

.

“‘A prosecutor’s isolated comments are not to be taken out of context and given

their most damaging meaning.’” 

 quoting 

. “‘Instead, an

appellate court must review a closing argument in its entirety to determine whether

prejudicial error occurred.’” 

 quoting 

.

                                      Analysis

       {¶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, 

 (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.” 

 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 

                               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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Case No. 14-25-02


to the silence of the accused, and the jury is instructed not to consider the accused’s

failure to testify for any purpose.’” 

 quoting State v. Ferguson, 

(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, 

 (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.             

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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Case No. 14-25-02


the trial court’s instructions. 

 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, 

 (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.”   

.     “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.’” 

 quoting State v.

Hayes, 

 (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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Case No. 14-25-02


       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, 

 (3d Dist.).

“Crim.R. 52(B) governs plain-error review in criminal cases.” State v. Bagley,

 (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, 

 (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.” 

 Accordingly, Shipley must show that, absent the

prosecutors’ statements, the outcome of his trial would be different. 

.

See also In re J.G., 

 (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, 

 (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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Case No. 14-25-02


court. See State v. Sommerfield, 

 (3d Dist.). This is a crucial

function of the jury and falls within the bounds of a proper closing argument. See

State v. Lester, 

 (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.

                                                                 Judgment Affirmed

WALDICK, P.J. and WILLAMOWSKI, J., concur.




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Case No. 14-25-02


                            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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