[Cite as State v. Schmidt, 2026-Ohio-2678.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-25-66
PLAINTIFF-APPELLEE,
v.
JONATHAN R. SCHMIDT, OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 25TRC00134
Judgment Affirmed
Date of Decision: July 13, 2026
APPEARANCES:
Linda Gabriele for Appellant
Joseph C. Snyder for Appellee
Case No. 1-25-66
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jonathan R. Schmidt (“Schmidt”) appeals the
judgment of the Lima Municipal Court, arguing that (1) his right of confrontation
was violated by the introduction of inadmissible hearsay statements at trial; (2) he
was denied his right to the effective assistance of counsel; (3) his conviction is
against the manifest weight of the evidence; and (4) the State’s closing arguments
included comments that constituted prosecutorial misconduct. For the reasons set
forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} At roughly 4:00 A.M. on January 3, 2025, Patrolman Latricia Frueh
(“Ptl. Frueh”) of the Lima Police Department received a report that an accident had
occurred on North West Street in Allen County. When she arrived at the scene in
her cruiser, she observed an abandoned vehicle that had crashed into a utility pole
in a residential area. She testified that the vehicle appeared to have been traveling
in a northbound direction and that, while it was snowing outside, the northbound
lane appeared to have been recently cleared by a snowplow.
{¶3} Since no one was in the vehicle, Ptl. Frueh looked inside to see if any
of its contents could help to identify the driver. During this process, she was unable
to locate the keys to the vehicle. After opening the glove compartment, she came
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across the name of “Jonathan Schmidt” on a recently issued traffic citation. A
search of this name in the Law Enforcement Automated Data System (“LEADS”)
returned Schmidt’s picture and driver’s license information. Ptl. Frueh then had this
picture forwarded to the other police units in the area.
{¶4} While Ptl. Frueh was still at the crash site, Officer Corey Long (“Officer
Long”) was searching the vicinity for the missing driver when he drove past an
Express Mart on North West Street that was two or three blocks away from the
accident. He pulled his police cruiser into the gas station parking lot after he saw a
person—later identified as Schmidt—“ducking behind the gas pumps. . . .” (Tr.
122). Officer Long testified that, during their initial interaction, Schmidt carried the
odor of an alcoholic beverage; was leaning against a pillar; and was spilling the
contents of a thermos on his own legs.
{¶5} When the police began to ask him questions, Schmidt refused to
identify himself and denied any involvement with the nearby accident. However,
the police were able to identify Schmidt using the picture that was found when the
name on the traffic citation in the vehicle had been entered into LEADS. Shortly
thereafter at roughly 4:21 A.M., Officer Long placed Schmidt under arrest for
failing to stop after an accident. After his arrest, Schmidt indicated that he was the
driver of the abandoned vehicle and had left the scene of the accident because his
driver’s license was suspended.
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{¶6} At 4:27 A.M., Ptl. Frueh knocked on the door of the house that was
behind the utility pole that had been hit by the vehicle. The homeowner said that he
did not see the accident but went outside after he heard the sound of the crash and
saw the driver exit the vehicle. He reported that the driver appeared to a white male;
was wearing a skull cap and sweater; and walked in a northbound direction away
from the accident.
{¶7} During the trip to the police department, Schmidt admitted that he had
several drinks before the accident. At the police station, Schmidt refused chemical
testing and signed Form 2255 after Officer Long had read its contents to him. The
police performed a records search that confirmed Schmidt’s driver’s license was
subject to an “OVI Suspension.” (Tr. 128). The police also found the keys to the
abandoned vehicle in Schmidt’s possession.
{¶8} On January 6, 2025, Schmidt was charged with one count of operating
a motor vehicle under the influence of alcohol or drugs (“OVI”) with two prior OVI
convictions in a ten-year period and a refusal to take a chemical test in violation of
R.C. 4511.19(A)(2)(a)-(b), an unclassified misdemeanor; one count of OVI with
two prior OVI convictions in a ten-year period in violation of R.C.
4511.19(A)(1)(a), an unclassified misdemeanor; one count of driving under an OVI
suspension in violation of R.C. 4510.14(A), a first-degree misdemeanor; and one
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count of failure to stop after an accident on a public roadway in violation of R.C.
4549.02(A)(1), a first-degree misdemeanor.
{¶9} On October 2, 2025, these charges proceeded to a jury trial. During Ptl.
Frueh’s testimony, the State played the body camera footage of her discovering the
traffic citation in the vehicle’s glove compartment and of her interviewing the
homeowner for the jury. The State also called Officer Long to testify and showed
the body camera footage of Schmidt’s arrest. At the close of evidence, the trial court
granted Schmidt’s Crim.R. 29 motion on the charge of failure to stop after an
accident on a public roadway in violation of R.C. 4549.02(A), finding that the
evidence produced at trial did not establish that the collision with the utility pole
occurred on the public roadway.
{¶10} The jury returned verdicts of guilty on one count of OVI with two prior
OVI convictions in a ten-year period and a refusal of a chemical test in violation of
R.C. 4511.19(A)(2)(a)-(b); one count of OVI with two prior OVI convictions in a
ten-year period in violation of R.C. 4511.19(A)(1)(a); and one count of driving
under an OVI suspension in violation of R.C. 4510.14(A). Since Schmidt was
convicted of two OVI offenses, the State elected to proceed at sentencing on his
conviction for OVI with two prior OVI convictions in a ten-year period with refusal
of a chemical test in violation of R.C. 4511.19(A)(2)(a)-(b). The trial court issued
its judgment entry of sentencing on October 3, 2025.
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{¶11} Schmidt filed his notice of appeal on October 28, 2025 and raises the
following four assignments of error:
First Assignment of Error
The trial court erred in admitting hearsay statements in violation
of the defendant-appellant’s right to confrontation.
Second Assignment of Error
Trial counsel was ineffective by failing to litigate, prior to trial,
the admissibility of the defendant-appellant’s statements. As
such, the defendant-appellant was denied effective assistance of
counsel in violation of his Sixth and Fourteenth Amendment
rights, as well as his rights under Section 10, Article I, Ohio
Constitution.
Third Assignment of Error
The verdict of the trial court was against the manifest weight of
the evidence as the State of Ohio failed to prove each and every
element of the charges beyond a reasonable doubt.
Fourth Assignment of Error
The closing argument by the State of Ohio created a manifest
miscarriage of justice violating the defendant-appellant’s right to
a fair trial.
First Assignment of Error
{¶12} Schmidt argues that the trial court erred by admitting hearsay
statements in violation of the Ohio Rules of Evidence and his constitutional right of
confrontation.
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Hearsay Legal Standard
{¶13} “Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). While hearsay is typically inadmissible under the Ohio
Rules of Evidence, statements that convey present sense impressions fall within an
exception to this general rule. Evid.R. 802, 803(1). A present sense impression is
“[a] statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.” Evid.R. 803(1).
{¶14} The rationale for this exception is that the temporal proximity between
the event and the utterance reduces the likelihood of memory lapses and leaves the
declarant little time to reflect or concoct fabrications. State v. Scott, 2021-Ohio3427, ¶ 16 (1st Dist.). Thus, a key indicator of trustworthiness “is the spontaneity
of the statement. . . .” State v. Canas, 2025-Ohio-1471, ¶ 34 (10th Dist.). “While
temporal proximity is critical to a present sense impression analysis, there is no
bright line rule as to what amount of elapsed time precludes a finding that the
exception applies.” State v. May, 2012-Ohio-5128, ¶ 42 (3d Dist.).
{¶15} In general, an appellate court reviews the admissibility of hearsay
statements for an abuse of discretion. State v. Berry, 2021-Ohio-1132, ¶ 100 (3d
Dist.). But if the challenged hearsay is found to be inadmissible, Civ.R. 52(A)
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provides that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” Thus, an error that does not prejudice a
defendant’s substantial rights is harmless and will not generally provide grounds for
a new trial. State v. Boaston, 2020-Ohio-1061, ¶ 63.
{¶16} To determine if an error affected a defendant’s substantial rights,
courts are to examine (1) “whether the defendant was prejudiced by the error, i.e.,
whether the error had an impact on the verdict”; (2) “whether the error was not
harmless beyond a reasonable doubt”; (3) whether the evidence at trial “establishes
the defendant’s guilt beyond a reasonable doubt” after the inadmissible evidence is
removed from consideration. State v. Harris, 2015-Ohio-166, ¶ 37.
Confrontation Clause Legal Standard
{¶17} A statement that is admissible under the Ohio Rules of Evidence may
still run afoul of the defendant’s right of confrontation as guaranteed by the Sixth
Amendment to the United States Constitution. State v. Dever, 64 Ohio St.3d 401,
415 (1992). The Confrontation Clause guarantees a criminal defendant the right “to
be confronted with the witnesses against him.” State v. McBeth, 2019-Ohio-59, ¶
25 (3d Dist.), quoting Crawford v. Washington, 541 U.S. 36, 38 (2004).
The United States Supreme Court has interpreted this to mean that
admission of an out-of-court statement of a witness who does not
appear at trial is prohibited by the Confrontation Clause if the
statement is testimonial unless the witness is unavailable and the
defendant has had a prior opportunity to cross-examine the witness.
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State v. Maxwell, 2014-Ohio-1019, ¶ 34. In turn, “‘testimony’ . . . is typically ‘[a]
solemn declaration or affirmation made for the purpose of establishing or proving
some fact.’” Crawford at 51, quoting 2 N. Webster, An American Dictionary of the
English Language (1828).
{¶18} “When out-of-court statements made to law enforcement are at issue,
the primary purpose test applies.” State v. Little, 2016-Ohio-8398, ¶ 18 (3d Dist.),
quoting State v. Siler, 2007-Ohio-5637, ¶ 28. Under this test,
[s]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
State v. Perkins, 2011-Ohio-2705, ¶ 4 (3d Dist.), quoting Davis v. Washington, 547
U.S. 813, 822 (2006). In general, an appellate court reviews an alleged violation of
a defendant’s right of confrontation under a de novo standard of review. State v.
Brentlinger, 2017-Ohio-2588, ¶ 51 (3d Dist.).
{¶19} However, if a defendant is able to establish a violation of his or her
constitutional right of confrontation, the appellate court examines whether the error
is harmless beyond a reasonable doubt. State v. Carter, 2024-Ohio-1247, ¶ 46. See
Harris, 2015-Ohio-166, at ¶ 37. In this context, an error is harmless “where there
is ‘overwhelming evidence of the accused’s guilt or some other indicia that the error
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did not contribute to the conviction.’” State v. Goff, 2005-Ohio-339, ¶ 12 (9th Dist.),
quoting State v. DeMarco, 31 Ohio St.3d 191, 195 (1987).
Overwhelming proof becomes readily apparent when ‘the allegedly
inadmissible statements . . . at most tend[] to corroborate certain
details’ of the state’s case-in-chief. . . . Accordingly, the admission
of purely cumulative evidence in violation of the Sixth Amendment
amounts to harmless error.
(Brackets sic.) State v. Carter, 2024-Ohio-1247, ¶ 46, quoting Schneble v. Florida,
405 U.S. 427, 431 (1972).
Legal Analysis
{¶20} At trial, the video footage of Ptl. Frueh’s discussion with the
homeowner was admitted into evidence over defense counsel’s objection. In this
two-minute-long video, the homeowner briefly described the person he saw walking
away from the crashed vehicle. On appeal, Schmidt argues that these statements
were inadmissible hearsay and that his constitutional right of confrontation was
violated since he never had the chance to cross-examine the homeowner.
{¶21} In response, the State argues that these statements were admissible as
present sense impressions. Ptl. Frueh testified that she was at the scene of the
accident within minutes of receiving the dispatch. Her body camera footage
indicates that she approached the abandoned vehicle at 4:09 A.M. and knocked on
the homeowner’s door at 4:27 A.M. Based on this timing, the State asserts that
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these statements were made in sufficiently close proximity to the event to fall within
the exception set forth in Evid.R. 803(1).
{¶22} But even assuming that these statements were inadmissible hearsay
and were introduced in violation of Schmidt’s right of confrontation, any resulting
error was harmless beyond a reasonable doubt because the homeowner’s description
was purely cumulative of other evidence that was used to establish Schmidt’s
identity at trial. Ptl. Frueh testified that she discovered Schmidt’s name on a recent
traffic citation inside the vehicle. By searching this name, she found Schmidt’s
picture with his driver’s license record and forwarded this information to the law
enforcement officers in the area.
{¶23} Officer Long’s testimony and body camera footage indicate that the
police eventually used the picture sent by Ptl. Frueh to identify Schmidt. He further
testified that he came across Schmidt at a gas station that was only two or three
blocks away from the accident. Finally, the recording from Ptl. Frueh’s body
camera indicated that she was unable to locate the keys to the vehicle at the scene
of the accident. Officer Long testified that the keys to the abandoned vehicle were
ultimately found in Schmidt’s possession.
{¶24} In summary, the homeowner’s brief description of the person walking
away from the accident was purely cumulative of more compelling evidence that
established Schmidt’s identity as the driver of the abandoned vehicle. See State v.
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Parker, 2023-Ohio-2722, ¶ 15 (3d Dist.). Thus, we conclude that any error
associated with the admission of this evidence was harmless beyond a reasonable
doubt. Accordingly, the first assignment of error is overruled.
Second Assignment of Error
{¶25} Schmidt asserts that defense counsel was ineffective for failing to file
a motion to suppress several statements he made to the police after his arrest.
Legal Standard
{¶26} “Ohio law presumes that a licensed attorney’s representation was
competent.” State v. Morgan, 2024-Ohio-625, ¶ 13 (3d Dist.). “In order to prove
an ineffective assistance of counsel claim, the appellant must carry the burden of
establishing (1) that his or her counsel’s performance was deficient and (2) that this
deficient performance prejudiced the defendant.” State v. McWay, 2018-Ohio-3618,
¶ 24 (3d Dist.), quoting Strickland v. Washington, 466 U.S. 668, 687 (1984).
{¶27} To establish deficient performance, the appellant must demonstrate
that defense “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Howton,
2017-Ohio-4349, ¶ 35 (3d Dist.), quoting Strickland at 687. In general, matters that
fall within the ambit of trial strategy or debatable tactics do not constitute ineffective
assistance of counsel. State v. Wears, 2023-Ohio-4363, ¶ 32 (3d Dist.).
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{¶28} To establish prejudice, “the defendant must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.” State v. Bibbs, 2016-Ohio-8396, ¶ 13 (3d Dist.). “If the appellant
does not establish one of these two prongs, the appellate court does not need to
consider the facts of the case under the other prong of the test.” State v. Gear, 2023-Ohio-1246, ¶ 50 (3d Dist.).
Legal Analysis
{¶29} On appeal, Schmidt argues that defense counsel was ineffective for
failing to file a motion to suppress that challenged the admissibility of several
statements that he had made to the police after his arrest. In this case, the State
introduced body camera footage in which the police asked several questions to
Schmidt after his arrest while they were still standing outside at the gas station.
When the police asked him why he did not report the accident to law enforcement,
Schmidt indicated that he was the driver of the vehicle and that he did not call the
police because his driver’s license was suspended.
{¶30} Further, Officer Long also testified that, during the drive to the jail,
Schmidt stated that he had several drinks at a local bar but that these comments were
not recorded because the police cruiser’s camera was not activated at that time. On
appeal, Schmidt alleges that defense counsel should have filed a motion to suppress
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that argued this evidence was inadmissible because he was not Mirandized between
his arrest and the time he made these statements.
{¶31} The decision not to file a motion to suppress is not per se ineffective.
State v. Cartlidge, 2020-Ohio-3615, ¶ 41 (3d Dist.). To prevail with such an
argument, the appellant must first establish a reasonable probability exists that the
motion to suppress would have been successful. Id. The appellant must then
establish that a reasonable probability exists that, if the challenged evidence had
been excluded, the outcome of the trial would have been different—the same
standard for prejudice in a plain-error analysis. Id.; State v. Bond, 2022-Ohio-4150,
¶ 22.
{¶32} Even assuming that a motion to suppress would have been granted,
Schmidt cannot demonstrate that a reasonable probability exists that the outcome of
this proceeding would have been different in the absence of the challenged
statements. First, the State presented ample evidence at trial that Schmidt was the
driver of the abandoned vehicle. As noted previously, Ptl. Frueh found Schmidt’s
name on a recent traffic citation that was in the abandoned vehicle and used this
information to obtain a picture of him. The police then used this picture to identify
Schmidt. Further, Officer Long came across him at a gas station that was only two
or three blocks away from the accident and testified that Schmidt was in possession
of the keys to the abandoned vehicle.
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{¶33} Second, the State presented ample evidence that established Schmidt
was intoxicated. Officer Long testified that he detected the odor of an alcoholic
beverage when he approached Schmidt and noticed that Schmidt was leaning
against a pillar at the gas station. He then noticed that Schmidt was fumbling a
thermos that he was holding upside down; was spilling its contents on his pants; and
had “slurred” speech. (Tr. 124). Officer Long also said that Schmidt’s “footwork”
and “mannerism[s]” also showed signs of impairment. (Tr. 133). Since the body
camera footage of this interaction was introduced at trial, the jury had the
opportunity to observe Schmidt’s behavior.
{¶34} Further, the evidence that establishes Schmidt was the driver of the
vehicle also indicates that he fled the scene of an accident after he had been unable
to maintain control of a vehicle and crashed into a utility pole. Schmidt then refused
chemical testing after he received the Form 2255 warnings. See Westerville v.
Cunningham, 15 Ohio St.2d 121, 122 (1968); State v. Peterson, 2025-Ohio-877, ¶
21 (9th Dist.). The record also does not contain any evidence that suggests his
refusal was not a product of his “fear of the likely result. . . .” State v. Tomic, 2024-Ohio-5537, ¶ 43 (5th Dist.). See also City of Maumee v. Anistik, 69 Ohio St.3d 339,
344 (1994).
{¶35} Third, while Schmidt admitted his driver’s license was suspended, he
also entered a stipulation to the fact that his driver’s license was suspended pursuant
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to R.C. 4511.19. Having examined the evidence in the record, we conclude that
Schmidt has failed to demonstrate that a reasonable probability exists that the
outcome of his trial would have been different in the absence of his statements to
the police. Since Schmidt did not establish the prejudice prong of his ineffective
assistance of counsel claim, the second assignment of error is overruled.
Third Assignment of Error
{¶36} Schmidt argues that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence.
Legal Standard
{¶37} “A sufficiency-of-the-evidence analysis examines whether the State
has carried its burden of production at trial.” State v. Whitt, 2025-Ohio-424, ¶ 16
(3d Dist.). “On review, an appellate court is not to consider whether the evidence
at trial should be believed but whether the evidence, if believed, could provide a
legal basis for the finder of fact to conclude that the defendant is guilty of the crime
charged.” State v. Daniels, 2024-Ohio-1536, ¶ 13 (3d Dist.).
Accordingly, the applicable standard ‘is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found that the essential elements of the crime
were proven beyond a reasonable doubt.’
State v. Reed, 2024-Ohio-4838, ¶ 30 (3d Dist.), quoting State v. Plott, 2017-Ohio38, ¶ 62 (3d Dist.).
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{¶38} “A manifest-weight analysis examines whether the State has carried
its burden of persuasion at trial.” State v. Carroll, 2024-Ohio-1626, ¶ 58 (3d Dist.).
On review, “an appellate court’s function . . . is to determine whether the greater
amount of credible evidence supports the verdict.” State v. Harvey, 2020-Ohio-329,
¶ 12 (3d Dist.), quoting Plott at ¶ 73 (3d Dist.).
Appellate courts “must review the entire record, weigh the evidence
and all of the 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.’”
State v. Randle, 2018-Ohio-207, ¶ 36 (3d Dist.), quoting Plott at ¶ 73, quoting State
v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
Legal Analysis
{¶39} Schmidt argues that, in the absence of the evidence challenged in his
first two assignments of error, his two convictions are not supported by sufficient
evidence and are against the manifest weight of the evidence. We will first examine
the evidence related to his conviction for driving under an OVI suspension. R.C.
4510.14(A) defines this offense and reads, in its relevant part, as follows:
No person whose driver’s . . . license . . . has been suspended under
section 4511.19 . . . shall operate any motor vehicle upon the public
roads or highways within this state during the period of the
suspension.
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As an initial matter, Schmidt filed a written stipulation that stated his driver’s license
had been “suspended under section 4511.19. . . .” (Doc. 26).
{¶40} Further, Ptl. Frueh testified at trial that she located a vehicle that had
been abandoned on a public roadway after it had collided with a utility pole. As
noted previously, she found Schmidt’s name on a traffic citation in the vehicle and
used this information to find his picture on LEADS. The record indicates that the
police later used this picture to identify Schmidt after he was located at a gas station
that was only two or three blocks from the accident.
{¶41} Importantly, Schmidt was found to be in possession of the keys to the
abandoned vehicle. Having examined the record in a light most favorable to the
prosecution, we conclude that a rational trier of fact could have found that the State
had produced some evidence that substantiated each of the essential elements for
the offense of driving under an OVI suspension.
{¶42} Turning to the manifest-weight argument, we note that Ptl. Frueh
testified that Schmidt was not the owner of the vehicle. Officer Long indicated that
Schmidt initially denied driving the crashed vehicle and told the police that he was
at the gas station because he was waiting for a ride. However, Officer Long also
noted that Schmidt was only wearing a sweater and did not appear to be dressed for
walking outside on a snowy night.
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{¶43} Having examined the evidence based on its weight and credibility, we
find no indication that the jury lost its way and returned a verdict that was against
the manifest weight of the evidence. We note that the evidence in these analyses
does not include any of the materials that Schmidt challenged in his first two
assignments of error. For this reason, the arguments challenging Schmidt’s
conviction for driving under an OVI suspension are without merit.
{¶44} Schmidt’s second conviction was for a violation of R.C.
4511.19(A)(2). This provision reads, in its relevant part, as follows:
(A) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of or
pleaded guilty to a violation of this division, a violation of division
(A)(1) of this section, or any other equivalent offense shall do both of
the following:
(a) Operate any vehicle . . . within this state while under the influence
of alcohol, a drug of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle, streetcar,
or trackless trolley as described in division (A)(2)(a) of this section,
being asked by a law enforcement officer to submit to a chemical test
or tests under section 4511.191 of the Revised Code, and being
advised by the officer in accordance with section 4511.192 of the
Revised Code of the consequences of the person’s refusal or
submission to the test or tests, refuse to submit to the test or tests.
As an initial matter, Schmidt stipulated that he had “two prior convictions in the last
ten years for [OVI] . . . under 4511.19(A)(1).” (Doc. 26).
{¶45} Further, we incorporate the evidence that was reviewed under our
analysis of his conviction for driving under an OVI suspension. This evidence was
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sufficient to establish that Schmidt was the driver of the abandoned vehicle. Ptl.
Frueh testified that, when she arrived at the scene, she observed a vehicle that had
collided with a utility pole and had its airbags deployed. Since Schmidt was the
driver of this vehicle, this accident indicates that he was unable to maintain control
of the vehicle. He then fled the scene of the accident.
{¶46} Officer Long testified that, as he was driving past a gas station, he saw
a person—later identified as Schmidt—“ducking” behind a gas pump. He stated
that he detected the odor of an alcoholic beverage when he approached Schmidt at
the gas station and noticed that Schmidt’s speech was “slurred.” (Tr. 124). He
further observed that Schmidt was leaning against a pillar; was fumbling a thermos
that was in his hands; and spilling its contents on his legs as they spoke. He also
cited Schmidt’s “footwork” and “mannerism[s]” as showing signs of impairment.
(Tr. 133).
{¶47} Officer Long then testified that he asked Schmidt to submit to
chemical testing at the police station; that he read him the applicable warnings on
Form 2255; that Schmidt refused to submit to chemical testing; and that Schmidt
then signed the form. Having examined the record in a light most favorable to the
prosecution, we conclude that a rational trier of fact could have found that the State
had produced some evidence that substantiated each of the essential elements of the
OVI offense that is defined in R.C. 4511.19(A)(2)(a)-(b).
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{¶48} Turning to the manifest-weight argument, Ptl. Frueh testified that the
weather was snowy on the night of the accident. However, she also testified that
the roadway at the crash site appeared to have been recently plowed and that she
was not slipping on the roadway as she walked around the vehicle. We also note
that the jury was able to view body camera footage of Schmidt’s interaction with
the police and could compare Officer Long’s description of Schmidt’s condition
with the contents of this recording.
{¶49} Having examined the evidence based on its weight and credibility, we
find no indication that the jury lost its way and returned a verdict that was against
the manifest weight of the evidence. Again, we note that the evidence in these
analyses does not include any of the materials that Schmidt challenged in his first
two assignments of error. For this reason, the arguments challenging Schmidt’s
conviction for OVI in violation of R.C. 4511.19(A)(2)(a)-(b) are without merit.
Accordingly, the third assignment of error is overruled.
Fourth Assignment of Error
{¶50} Schmidt asserts that the State’s closing arguments contained several
comments that constituted prosecutorial misconduct.
Legal Standard
{¶51} “The test regarding prosecutorial misconduct in opening statements or
closing arguments is whether the conduct or remarks were improper and, if so,
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whether they prejudicially affected substantial rights of the defendant.” State v.
Caudill, 2025-Ohio-787, ¶ 39 (3d Dist.). “The touchstone of the analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Jones, 2012-Ohio-5677, ¶ 200, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
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.
Little, 2016-Ohio-8398, at ¶ 31 (3d Dist.), quoting State v. Braxton, 102 Ohio
App.3d 28, 41 (8th Dist. 1995). Further, the statements identified as prosecutorial
misconduct must be “examined in the context of the entire proceeding.” State v.
Tebelman, 2023-Ohio-882, ¶ 91 (3d Dist.).
{¶52} In this analysis, prosecutors are to be given “wide latitude in
summation as to what the evidence has shown and what reasonable inferences may
be drawn therefrom.” State v. Yelton, 2025-Ohio-2391, ¶ 40 (3d Dist.), quoting
State v. Stephens, 24 Ohio St.2d 76, 82 (1970). Thus, “not every intemperate remark
by counsel can be a basis for reversal.” State v. Bruce, 2023-Ohio-3298, ¶ 104 (3d
Dist.), quoting State v. Porter, 2012-Ohio-1526, ¶ 20 (4th Dist.). If
Legal Analysis
{¶53} At trial, Schmidt did not object during the State’s closing arguments.
If the Defense does not object at trial to the statements challenged as prosecutorial
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misconduct on appeal, all but plain error is forfeited. State v. Lopez, 2024-Ohio4967, ¶ 29 (3d Dist.).
For plain error to apply, the trial court must have deviated from a legal
rule, the error must have been an obvious defect in the proceeding,
and the error must have affected a substantial right. . . . Under the
plain error standard, the appellant must demonstrate that there is a
reasonable probability that, but for the trial court’s error, the outcome
of the proceeding would have been otherwise.
(Citation omitted.) State v. Bradshaw, 2023-Ohio-1244, ¶ 67 (3d Dist.). Plain error
is to be recognized “with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,
(1978), paragraph three of the syllabus. We turn to examining the three arguments
raised herein for plain error only.
{¶54} In his first argument, Schmidt argues that the prosecutor committed
misconduct when he explained that the State did not call all of the police officers
who were present at Schmidt’s apprehension because they “saw the same thing” and
would likely have said “the same thing over and over again[.]” (Tr. 167). As a
general matter, it is improper for a prosecutor to “impl[y] that witnesses not called
to testify would have given the exact same testimony as the testifying witnesses. . .
.” State v. Mulvey, 2009-Ohio-6756, ¶ 42 (7th Dist.).
{¶55} But even assuming that these comments were improper, the State
introduced the body camera footage of Schmidt’s interaction with the police at trial.
The jurors were able to compare Officer Long’s descriptions of this interaction
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against his body camera footage. We also note that the trial court instructed the jury
that closing arguments are not evidence. For these reasons, we conclude Schmidt
failed to establish plain error with this first argument.
{¶56} Second, Schmidt argues that the prosecutor committed misconduct by
making the following statement: “they were able to identify the defendant because
there were people that had descriptions of him.” (Tr. 161). He argues that this
statement was an improper reference to the homeowner’s out-of-court description
of his (Schmidt’s) appearance as substantive evidence. However, this ambiguous
statement could also be read as a reference to the fact that the police officers at the
gas station had received the picture and description of Schmidt from his driver’s
license record after Ptl. Frueh had this information forwarded to them.
{¶57} Even assuming this statement refers to the homeowner’s description,
the State still presented ample evidence that established Schmidt was the driver of
the abandoned vehicle: his name was on a recent traffic citation in the vehicle; he
was found within walking distance of the accident; he was in possession of the keys
to the vehicle. Given this other evidence, Schmidt has not presented an argument
on appeal that explains how the outcome of this proceeding could have been
different in the absence of this comment. Thus, even if this comment were
improper, Schmidt has failed to establish plain error with this second argument. See
also State v. Armour, 2022-Ohio-2717, ¶ 54-56 (3d Dist.).
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{¶58} Third, Schmidt asserts that the prosecutor’s references to his prior OVI
convictions during closing arguments were improper because the State failed to
specify that these prior convictions were only relevant to establish an element of the
OVI offenses that elevated the charges to an unclassified misdemeanor. See R.C.
4511.19(G)(1)(c)(ii); State v. Mason, 2025-Ohio-1040, ¶ 17, 22 (5th Dist.). Since
the State had to prove he had received two prior OVI convictions within ten years
of the instant offense, the jury was already aware of these prior convictions. See
Little, 2016-Ohio-8398, at ¶ 36 (3d Dist.).
{¶59} Further, the trial court gave a jury instruction that explained the
purpose of these references to Schmidt’s prior OVI convictions at trial. Appellate
courts presume that a jury followed the trial court’s instructions. State v. Treece,
2025-Ohio-4319, ¶ 22 (3d Dist.). Schmidt had not identified any portion of the
record that would lead us to dispense with this presumption. For these reasons, we
conclude that Schmidt has not established plain error with this third argument.
Accordingly, the fourth assignment of error is overruled.
Conclusion
{¶60} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Lima Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and WALDICK, 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.
John R. Willamowski, Judge
William R. Zimmerman, Judge
Juergen A. Waldick, Judge
DATED:
/hls
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