State v. Williams

[Cite as State v. Williams, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                                      No. 111739
                 v.                                  :

DANIEL WILLIAMS, JR.,                                :

                 Defendant-Appellant.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 25, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-20-654226-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Katherine E. Mullin and Christine M.
                 Vacha, Assistant Prosecuting Attorneys, for appellee.

                 Susan J. Moran, for appellant.

EMANUELLA D. GROVES, J.:

                 Defendant-appellant,            Daniel   Williams,    (“Appellant”)   appeals

convictions for Count 1, rape, R.C. 2907.02(A)(1)(b), a felony of the first degree

carrying a sentence of life without the possibility of parole; Count 2, gross sexual
imposition, R.C. 2907.05(A), a felony of the third degree; and Count 8, rape, R.C.

2907.02(A)(2), a felony of the first degree.

             For the reasons set forth below, we affirm.

Background and Procedural History

             On August 13, 2020, North Randall police were called to the Economy

Inn to investigate allegations of sexual abuse that M.B (d.o.b. 7/1/2006) initially

disclosed to her mother three months prior. M.B.’s mother reported that she had

seen explicit sexual text messages on Appellant’s phone between him and M.B. M.B.

reported that Appellant began sexually abusing her when she was eight years old.

Appellant was indicted on November 12, 2020, in an eight-count indictment alleging

multiple counts of rape and gross sexual imposition, and one count of disseminating

harmful matter to a minor. Appellant was incarcerated in the Cuyahoga County Jail

during the pendency of the case. During that time, Appellant made several calls

from the jail to M.B.’s mother where he disclosed the terms of the plea offer from

the assistant prosecutor and repeatedly asked M.B.’s mother to persuade M.B. to

recant her statement. During these calls M.B.’s mother told Appellant that she had

convinced M.B. to recant her statement and refuse to testify. On November 17, 2021,

the state filed a “notice of intent” to admit the minor victim’s statements under

Evid.R. 804(B)(6) because Appellant made repeated jail calls to the victims’ mother

urging her to get the victim to recant. The matter proceeded to a jury trial.
             During the trial, some of the calls were played for the jury during M.B.’s

mother’s testimony. She testified as follows regarding the recanting conversation

with Appellant:

       Q. When he says it’s up all to her, what is your response?

      A. I said I’m going to ask her again.

      THE COURT: Do you want to move up?

      A. I said I’m going to ask her again.

      Q. Ask her what?

      A. About what we was talking about.

      Q. Which was what?

      A. Recant her statement, but I never did ask her.

      Q. Say that again?

      A. About recanting her statement, but I never did ask her. I did tell
      him that. I did say that, but I never asked her.

(Tr. 267.)

             M.B.’s mother testified that she and Appellant began a romantic

relationship in 2010 or 2011 when M.B. was approximately four or five years old.

She testified that they moved in together immediately after they began dating and

that Appellant and M.B. had a father-daughter bond. She said that Appellant would

pick M.B. up from school, talk to her, spend time with her, and buy her things.

M.B.’s mother testified that she discovered the alleged assault in May 2020, when

she saw explicit messages between Appellant and M.B. on Appellant’s phone, but
failed to report it until August 2020, after a disagreement with Appellant over

money. (Tr. 224.)

             The Cuyahoga County Division of Children and Family Services worker,

Mr. Bishop, testified concerning, among other things, the options for disposition of

agency investigations and that the agency had investigated the allegations in this

case. Mr. Bishop testified that the agency’s disposition, in this case, was that abuse

was “indicated.”

            M.B. testified that she and Appellant were very close and that he was

like a father figure to her. M.B. further testified that she performed oral sex on

Appellant when she was eight and thirteen years old.

             Appellant sought dismissal of all counts pursuant to Crim.R. 29, which

the trial court denied. At the close of the state’s case, the state moved to dismiss

Counts 4, 5, 6, and 7, which the court granted. Appellant took the stand in his own

defense.   The jury subsequently returned a not guilty verdict to Count 3,

disseminating harmful matter to a juvenile, but guilty charges for Count 1, rape,

R.C. 2907.02(A)(1)(b), a felony of the first degree carrying a sentence of life without

the possibility of parole (pursuant to a jury finding of force); Count 2, gross sexual

imposition, R.C. 2907.05(A)(4), a felony of the third degree; and Count 8, rape, R.C.

2907.02(A)(2), a felony of the first degree.

             At sentencing, the trial court imposed a sentence of life without the

possibility of parole as to Count 1 (finding him to be a tier III sex offender); 48
months as to Count 2 (finding him to be a tier II sex offender); and, five years as to

Count 3 (finding him to be a tier III sex offender). All counts were run concurrently.

                Appellant timely appeals and raises the following five assignments of

error:

                              Assignment of Error No. 1

         The trial court erred when it allowed the CCDCFS social worker to
         testify that he believed M.B. was sexually assaulted in violation of State
         v. Boston.

                             Assignment of Error No. 2

         The trial court erred in allowing testimony of plea negotiations
         admitted at trial, contra Evid.R. 410, and the Fourth, Fifth, Sixth and
         Fourteenth Amendments to the Constitution.

                             Assignment of Error No. 3

         The trial court erred in denying appellant’s motion for acquittal
         pursuant to Crim.R. 29 when the state failed to submit sufficient
         evidence of force, denying the appellant due process.

                             Assignment of Error No. 4

         Appellant’s convictions are against the manifest weight of the evidence.

                             Assignment of Error No. 5

         Appellant was denied due process and a fair and impartial trial as
         guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the U.S.
         Constitution and Article I and XVI of the Ohio Constitution based on
         prosecutorial misconduct during closing argument.

CCDCFS Social Worker’s Testimony

                Appellant argues that the trial court erred by allowing the CCDCFS

social worker, Mr. Bishop, to testify that he believed M.B. was sexually assaulted in

violation of State v. Boston, 

, 

 (1989).
              An appellate court that reviews the trial court’s decision with respect

to the admission or exclusion of evidence must limit its review to a determination of

whether the trial court committed an abuse of discretion. State v. Jeffries, 8th Dist.

Cuyahoga No. 106889, 

, ¶ 11. An abuse of discretion occurs when

“a court exercise[s] its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.” Johnson v. Abdullah, 

,

, 

.

              Appellant alleges that the trial court erred when it allowed the

(CCDCFS) social worker to testify that he believed M.B. was sexually assaulted.

Appellant correctly recites the Ohio Supreme Court’s holding in Boston, that it is

improper for an expert witness to testify as to his or her opinion on the credibility of

a victim. State v. 

. The credibility of a witness is a determination to

be made by the factfinder, not an expert or layperson. Id. at ¶ 129.

              Here, Mr. Bishop testified that the agency’s disposition was that abuse

was “indicated.” (Tr. 373.) Testimony regarding the results of an investigation,

without an explicit opinion on the credibility of the victim, does not violate the

Boston rule. Jeffries at ¶ 11. Mr. Bishop testified that the three possible dispositions

at the conclusion of an investigation are unsubstantiated, indicated, or

substantiated. He explained generally the meaning of these dispositions. Mr.

Bishop testified that “a disposition of indicated “… means while there was no

physical evidence or evidence to show based on the information found, we believe

that something happened, whether abuse or neglect that was called for in that case.”
Mr. Bishop testified about the disposition he submitted in the current case, at the

conclusion of CCDCFS’s investigation as follows:

      THE STATE: When you submit [sic] your disposition for this case,
      what did you submit it as?

      THE DEFENSE: Objection, your Honor.

      THE COURT: He can answer.

      THE STATE: What did you submit it as?

      MR. BISHOP: Indicated.

(Tr. 373.)

              Unlike the witness in Boston, Mr. Bishop did not express an opinion

regarding a particular witness. Therefore, his testimony is distinguishable from the

prohibited testimony in Boston where the expert witness expressed her opinion

about the truth of the child’s statements. The determination of who is stating the

truth is a decision to be made by the factfinder. Mr. Bishop’s testimony, on the other

hand, did not directly opine on M.B.’s credibility.

              A social worker may testify concerning the children service agency’s

disposition of an allegation of abuse.       “A social worker’s interdepartmental

determination of an allegation of abuse — such as: unsubstantiated, substantiated,

or indicated — is acceptable, provided the social worker does not testify as to the

truthfulness or credibility of the alleged victim.” State v. Clark, 8th Dist. Cuyahoga

No. 101863, 

, ¶ 42. Expert testimony on the ultimate issue of

whether sexual abuse has occurred in a particular case is helpful to jurors and is
therefore admissible. State v. Stowers, 

, 

 (1998),

¶ 261.

              Moreover, in Smelcer, the social worker testified that the disposition

of the case was “indicated substantiated.” State v. Smelcer, 

, 

 (8th Dist.1993). The court noted that “the Boston decision did

not prohibit an expert from giving his or her opinion on whether sexual abuse

occurred.” 

      Undoubtedly, the investigation entailed making credibility

determinations based on the evidence reviewed in the course of the investigation,

but those credibility determinations are not admissible. Only the outcome of the

investigation is admissible at trial. Like the social worker’s testimony in Smelcer,

Mr. Bishop’s testimony “reflected his agency’s policy of classification of child abuse

cases and not an assessment of … credibility.” 

 Appellant’s brief fails to identify

any testimony made by the social worker that opined about the veracity or

believability of M.B.’s statements.

              Because Bishop’s testimony is solely limited to the investigation’s

results and does not convey an opinion on M.B.’s credibility or veracity, the trial

court’s decision to admit his testimony is consistent with established precedence.

Upon review of the record and relevant case law, we find that the trial court did not

abuse its discretion in allowing Mr. Bishop to testify regarding the agency’s

investigation and its disposition of “indicated” abuse. Therefore, Appellant’s first

assignment of error is overruled.
Testimony of Plea Negotiations

              In his second assignment of error, Appellant argues that the trial court

erred when it admitted evidence of plea discussions between Appellant and M.B.’s

mother, contrary to Evid.R. 410 and the Fourth, Fifth, Sixth, and Fourteenth

Amendments.

               As previously stated, the standard of review for admissibility or

exclusion of evidence is an abuse of discretion. Jeffries, 

 at ¶ 11.

The admissibility of such evidence is governed by Evid.R. 410(5), which generally

prohibits the introduction of evidence regarding plea negotiations.

              Evid.R. 410(5) states:

      (A) Except as provided in division (B) of this rule, evidence of the
      following is not admissible in any civil or criminal proceeding against
      the defendant who made the plea or who was a participant personally
      or through counsel in the plea discussions

      …

      (5) Any statement made in the course of plea discussions in which
      counsel for the prosecuting authority or for the defendant was a
      participant and that do not result in a plea of guilty or that result in a
      plea of guilty later withdrawn

              This prohibition is necessary to ensure that meaningful dialogue

between the attorneys, for the prosecution and defendant, can occur without the risk

of plea offers being used against either side later in court. State v. Dunbar, 8th Dist.

Cuyahoga No. 89896, 

, citing United States v. Verdoorn, 

 (8th Cir.1976). However, courts have rejected a strict interpretation

of Crim.R. 410(5), prohibiting evidence of plea discussions only when an attorney is
a participant in the discussion, citing potentially misleading and prejudicial effects

that would be detrimental to the plea-bargaining system. State v. Davis, 

, 

 (1st Dist. 1980). (The court excluded evidence

of plea discussions where a defendant, having engaged in plea negotiations with the

prosecutor, … seeks to introduce evidence concerning such negotiations, that is

helpful to himself and prejudicial to the state). Id. at ¶ 50; see also Dunbar at ¶ 28.

(The court found that where no plea negotiations occurred, the prosecutor’s

questions implying the existence of such negotiations were improper.) The Ohio

Supreme Court has acknowledged the importance of preventing the jury from

hearing evidence of plea discussions while limiting self-serving ad hoc statements.

Rather than prohibiting only those statements involving attorneys, the court instead

adopted a two-prong analysis for questions on the admissibility of evidence of plea

negotiations. State v. Frazier, 

, 

 (1995), ¶ 337.

              Under the Frazier test, the court must first assess whether a

defendant had a subjective expectation that he was negotiating a plea. The second

prong requires the court to determine whether that belief was reasonable under the

circumstances. However, evidence of plea discussions is not prohibited under

Evid.R. 410(5), when a defendant had no subjective expectation that he was

negotiating a plea or the belief was not reasonable under the circumstances.

              In order to find that the trial court abused its discretion when it

allowed the jury to hear Appellant discuss his plea offer with M.B.’s mother, we must
first determine whether Appellant had a subjective expectation that he was

negotiating a plea during the calls. M.B.’s mother testified as follows:

      Q. What did the Defendant tell you guys had to do?

      A. He wanted — he wanted to get out. You know what I’m saying? He
      wanted me help him any way I could. There was nothing I could — it
      wasn’t nothing I could do.

      Q. What did he tell you guys have to do?

      A. Lie.

(Tr. 280.)

                The testimony at issue involved Appellant’s repeated calls to M.B.’s

mother, during which he disclosed the terms of the plea offer and asked her to

persuade M.B. to recant her statement.           Appellant’s disclosure of the plea

negotiation to M.B.’s mother was not for the purpose of discussing the plea offer. So,

the state offered the recorded calls to demonstrate Appellant’s attempts to influence

M.B.’s testimony. The nature of the calls, as testified by M.B.’s mother, was

Appellant pressuring her to help him. Appellant used the amount of prison time he

was facing to persuade M.B.’s mother to convince M.B to recant her statement.

Appellant testified that he told her, “If you recant the statement, there’s a good —

I’m telling her what my lawyer said. Yes, I did.” (Tr. 467.) There is no evidence

suggesting that Appellant actually considered the plea offer during these calls, and

therefore, it cannot be determined that he had a subjective expectation that a plea

was being negotiated. Appellant was discussing the plea offer in an attempt to

manipulate M.B.’s mother.
              Consequently, there is a lack of evidence supporting Appellant’s

subjective belief that he was engaged in plea negotiations during the jail calls.

Therefore, we need not address the second prong to determine whether Appellant’s

expectation was reasonable under the circumstances. In light of the circumstances

under which Appellant discussed the plea negotiations, the trial court’s decision to

admit evidence of these plea discussions is consistent with the governing rules and

case law. Appellant’s second assignment of error is overruled.

Motion for Acquittal

              Appellant argues that the trial court erred when it denied his motion

for acquittal pursuant to Crim.R. 29, based on appellee’s failure to submit sufficient

evidence of force. We apply the same test in reviewing a challenge based on a denial

of a motion for acquittal as we would a challenge to the sufficiency of the evidence

to support a conviction. State v. Macalla, 8th Dist. Cuyahoga No. 88825, 2008-

Ohio-569, ¶ 38. We will review the evidence admitted at trial under a sufficiency of

the evidence standard to determine whether the evidence if believed, would

convince a reasonable juror of the defendant’s guilt beyond a reasonable doubt as to

each element of the offense. “[I]n a sufficiency of the evidence review, an appellate

court does not engage in a determination of witness credibility; rather, it essentially

assumes the state’s witnesses testified truthfully and determines if that testimony

satisfies each element of the crime.” State v. Sanchez-Sanchez, 

,

 (8th Dist.).
              To prove rape under R.C. 2907.02(A)(1)(b) and (B) the prosecution

must prove that an offender engaged in sexual conduct with someone who is less

than thirteen years old when the offender purposely compels the other person to

submit by force or threat of force. “Sexual conduct” means vaginal intercourse

between a male and female; anal intercourse, fellatio, and cunnilingus between

persons regardless of sex; and, without privilege to do so, the insertion, however

slight, of any part of the body or any instrument, apparatus, or other object into the

vaginal or anal opening of another. Penetration, however slight, is sufficient to

complete vaginal or anal intercourse. R.C. 2907.01.

               Force is determined based on the relationships of the parties. The

Ohio Supreme Court made clear a distinction for adults in positions of authority over

children under thirteen. The Dye Court held “that a person in a position of authority

over a child under thirteen may be convicted of rape of that child with force pursuant

to R.C. 2907.02(A)(1)(b) and (B) without evidence of an express threat of harm or

evidence of significant physical restraint.” State v. Dye, 

, 

 (1998). It is well settled that “when the relationship between the victim

and the defendant is one of a child, …, the element of force need not be openly

displayed or physically brutal. It can be subtle, slight, and psychologically or

emotionally powerful. Evidence of an express threat of harm or evidence of

significant physical restraint is not required.” State v. Frazier, 8th Dist. Cuyahoga

No. 107680, 

. M.B. testified that she was afraid to tell her

mother when the abuse was happening.
      Q. Now, when these bad things are happening, do you tell anybody
      about it?

      A. No.

      Q. Why not?

      A. I was scared.

      Q. Why were you scared?

      A. Because I didn’t know how to tell my mom that my — I’m giving my
      stepdad oral sex. I was also scared that he might get angry and
      probably kill me. I was just scared.

(Tr. 345.)

               On the other hand, state offered evidence that M.B. looked up to the

Appellant as a father figure and identified him as her “stepfather.” There was

testimony that Appellant began dating M.B.’s mother when she was approximately

two years old. Appellant lived with M.B., her mother, and her younger brother at

some point. M.B., her mother, and Appellant testified that Appellant shared in

caregiving tasks such as picking M.B. up from school, talking with her, and buying

her things. The evidence shows that M.B. witnessed Appellant commit domestic

violence against her mother and that M.B. was afraid when the sexual abuse was

happening. M.B. testified that the first time Appellant sexually abused her she was

eight years old. She said Appellant told her to masturbate his erect penis with her

hands until he ejaculated. Within a few weeks after, M.B. testified that Appellant

showed her pornographic videos and told M.B. to use her “mouth” to perform

fellatio on his erect penis until Appellant ejaculated.
             Appellant argues that there was no basis to conclude that there was

evidence of psychological or emotional force during the alleged abuse. He alleges

that M.B. had the motive to implicate Appellant because she was angry at him for

committing domestic violence against her mother and she blamed Appellant for her

mother’s drug abuse. Appellant disputes that there was testimony that he ever

abused, hit, or threatened M.B.

              In light of the evidence presented at trial and viewing it in the most

favorable light to the prosecution, a rational trier of fact could have found all

elements of rape of a child under thirteen, including the use of force or threat of

force, proven beyond a reasonable doubt. M.B’s testimony, if believed,

demonstrated a threat of force by the defendant sufficient to satisfy the

requirements of R.C. 2907.02(A)(1)(b) and (B). Accordingly, Appellant’s third

assignment of error is overruled.

      Manifest Weight of the Evidence

              In his fourth assignment of error, Appellant argues that his

convictions are against the manifest weight of the evidence. A reversal based on the

manifest weight of the evidence is reserved for cases where “the [factfinder] clearly

lost its way and created a manifest miscarriage of justice” and “should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Scott, 8th Dist. Cuyahoga No. 110744, 

.

A manifest weight of the evidence standard of review applies to the state’s burden of

persuasion. While a sufficiency challenge disputes whether a party met its burden
of production at trial, a manifest weight challenge disputes whether a party carried

its burden of persuasion. State v. Messenger, Slip Opinion No. 

.

               A claim that a jury verdict is against the manifest weight of the

evidence involves a different test.

        The court, reviewing the entire record, weighs the evidence and all
        reasonable inferences, considers the credibility of witnesses, and
        determines whether in resolving conflicts in the evidence, the jury
        clearly lost its way and created such a manifest miscarriage of justice
        that the conviction must be reversed and a new trial ordered. The
        discretionary power to grant a new trial should be exercised only in the
        exceptional case in which the evidence weighs heavily against the
        conviction.

State v. Dean, 

, 

, 

.

               Appellant relies on the lack of physical evidence in support of his claim

that the verdict was against the manifest weight of the evidence. We disagree. A

conviction may rest solely on the testimony of a single witness if believed, and there

is no requirement that a witness’ testimony be corroborated to be believed. See, e.g.,

State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 

;

State v. Black, 

, 

, ¶ 43 (8th Dist.); State v.

Schroeder, 

, 

, ¶ 84 (4th Dist.); State v. Dudley, 9th Dist.

Summit No. 28364, 

; State v. Jones, 8th Dist. Cuyahoga No.

108371, 

.

               In this case, the jury found the Appellant guilty of the charged offenses

based on the evidence presented at trial that included M.B.’s testimony, which
described Appellant’s actions and their effect on her. M.B. testified that she looked

up to Appellant as a father figure, referring to him as her “stepfather,” and that she

witnessed Appellant commit domestic violence against her mother. M.B. described

the first instance of abuse when she was eight years old. She testified that Appellant

asked her if she wanted to see a volcano erupt, then instructed M.B. on masturbating

his erect penis with her hand until he ejaculated. M.B. testified that within two

weeks he asked her to use her mouth to perform fellatio. She testified about her fear

during the abuse and her reluctance to tell anyone about the sexual assault.

Appellant testified that he had violent tendencies. The record also includes evidence

that Appellant made hundreds of calls to M.B.’s mother during the pendency of the

case for the purpose of pressuring M.B. into recanting her statement.

              Given the evidence presented at trial, we cannot conclude that the jury

clearly lost its way and created a manifest miscarriage of justice. The evidence does

not weigh heavily against the conviction, and moreover, this is not an exceptional

case warranting reversal based on the manifest weight of the evidence. Accordingly,

Appellant’s fourth assignment of error is overruled.

Prosecutorial Misconduct

              In order for Appellant to establish prosecutorial misconduct during

closing argument, he must show that (1) the remarks were improper, and (2) these

improper remarks prejudicially affected his substantial rights. State v. Dailey, 4th

Dist. Adams No. 18CA1059, 

, ¶ 38. Courts assess prejudice by

examining “the effect of the misconduct … in the context of the entire trial.” State
v. Wilks, 

, 

, 

, quoting State

v. Keenan, 

, 

 (1993). We must look at the

entire closing argument to determine whether it deprived Appellant of a fair trial or

prejudiced him. State v. Morton, 8th Dist. Cuyahoga No. 109200, 

. Where Appellant failed to object to the prosecutor’s alleged misconduct at trial

he has forfeited all but plain error. State v. Hartman, 

, 

 (2001) (defense counsel’s failure to object to prosecutorial misconduct

during trial waived all but plain-error review). State v. Whitaker, Slip Opinion No.

.

              Appellant argues that the prosecutor’s statements during the closing

argument were analogous to Smith, where the prosecutor ignored the court’s orders

and engaged in name-calling. We disagree that the prosecutor’s conduct was as

flagrant as that in Smith. The prosecution must avoid insinuations and assertions

that are calculated to mislead the jury. Berger v. United 

; State

v. Smith, 

, 

 (1984). However, while it is improper

for the prosecutor to express to the jury his or her personal opinion about the

credibility of any witness, the state is permitted to make fair comments on the

credibility of witnesses based upon their testimony in open court.          In those

circumstances, the jury is not invited to go beyond the evidence presented in court.

State v. Stevens, 

, 

, ¶ 61 (3d Dist.). Appellant argues

that the prosecutor’s statements regarding the credibility of M.B.’s statements and

lack of credibility of Appellant’s statements were improper. We agree.
      THE STATE: She was witnessing abuse in the home and I would
      suggest to you all, these are grooming behaviors that Mr. Williams is
      perpetrating on her.

      THE STATE: This is not a vengeful 14-year-old, ladies and gentlemen.
      This is a child trying to tell her truth. A child who underwent
      manipulation at Mr. Williams’s hands and then manipulation to try to
      get her to not come forward in this case for the past two years, but she
      was consistent, ladies and gentlemen, and she was consistent here with
      all of you.

(Tr. 513.)

      THE STATE: Ladies and gentlemen, if M.B. came in here and told you
      the truth, then that would be a lie to say anything else. I believe when
      you use your reason and your common sense to evaluate each and every
      element of this case that you will agree that you will find her to be
      truthful, and that you will find she’s a person, a girl deserving of justice
      in this case.

(Tr. 513-514.)

      THE STATE: What also we can rely on when we evaluate M.B.’s
      testimony is her consistency. She was consistent in the story that she
      told and she was steadfast in coming here almost two years later in an
      open court as a 14-year-old girl to tell all of you what happened to her.
      That takes courage.

(Tr. 509.)

                 In this case, the prosecutor’s statements concerning grooming and his

characterization of M.B.’s testimony as truthful went beyond the evidence admitted

in court. However, Appellant did not object during the trial, therefore he has waived

all but plain error. To prevail on plain error, Appellant must show that an error

occurred, that the error was plain, and that but for the error, the outcome of the trial

clearly would have been otherwise. Dailey at ¶ 39.
              Accordingly, Appellant must show that but for the prosecutor’s

improper statements, he would have prevailed at trial. The record reflects that

Appellant acknowledged that he had violent tendencies, that he committed domestic

violence against M.B.’s mother, and that M.B. witnessed the abuse. There is no

dispute that M.B. considered Appellant a parental authority figure. He picked her

up from school, acted as a confidant, and bought her things. The evidence also

reflects that there were numerous calls from the jail from Appellant to M.B.’s

mother, during which, Appellant attempted to pressure M.B.’s mother into

persuading M.B. to recant her statement and refuse to testify at trial. In the absence

of the prosecutor’s inappropriate statements, Appellant cannot say that a jury would

not have convicted him. Appellant’s fifth assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from 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

common pleas court to carry this judgment into execution.           The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


_________________________
EMANUELLA D. GROVES, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN A. GALLAGHER, J., CONCUR