State v. Marshall , 2022 Ohio 3795 ( 2022 )

[Cite as State v. Marshall, 2022-Ohio-3795.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 20AP-394
v. : (C.P.C. No. 17CR-6842)
Cottrell Marshall, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 25, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Darren M. Burgess, for appellee. Argued: Darren M.
Burgess.
On brief: Bellinger & Donahue, and Kerry M. Donahue, for
appellant. Argued: Kerry M. Donahue.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Cottrell Marshall, Jr., appeals the July 27, 2020
judgment of the Franklin County Court of Common Pleas following a jury trial, and asserts
five assignments of error with the trial court's judgment:
I. The veridct [sic] was against the sufficiency of the evidence.
II. The guilty findings were against the manifest weight of the
evidence.
III. The State of Ohio did not establish that sexual activity or
sexual conduct occurred in specific instances or on specific
dates in Franklin County, Ohio, and thus the court lacked
jurisdiction and venue was improper.
IV. The Court should have stricken the testimony of witness
RC as it was more prejudicial than probative and was highly
No. 20AP-394 2
prejudicial as it demeaned counsel and appellant denying due
process right to a fair trial.
V. The jury instruction as to accomplice testimony was plain
error.
After a thorough review of the briefs, arguments, and record, we conclude that none of
appellant's arguments have merit, and affirm his convictions and sentences.
{¶ 2} Plaintiff-appellee, State of Ohio, contended that Marshall and several
codefendants were pimps and operated a human trafficking and prostitution ring, as well
as dealing crack cocaine and heroin, during the period between 2012 through 2015. The
state argued that he operated a prostitution ring "in the hotels on 161 near I-71." (Tr. at
442.) Marshall and his co-defendants allegedly used a website called Backpage.com—
which works "like craigslist or Facebook Marketplace"—to advertise "dates" with the
women he trafficked. Id. at 443. Marshall and his co-defendants allegedly purchased
prepaid debit cards to post the advertisements.
{¶ 3} Marshall contended that these assignations were normal dates, but witness
S.W., amongst others, described them as "a call with a john. A john is a guy that is going to
call the number that's posted on your ad and he's going to see if you're available for a certain
time and then they pay for the hour or the half an hour with you, and in -- in all -- it's -- the
purpose is mainly to just have sex or -- or whatever that other person prefers. More than
likely it's sex." Id. at 467.
{¶ 4} Several co-defendants, police officers, johns, and trafficking victims testified
at trial. Multiple trafficking victims testified that Marshall collected money for organizing
these dates and allowing them to occur, ranging from $60 up to $2,000 on at least one
occasion. At times they would give him all money collected, but on other occasions they
would get to keep some of it after giving Marshall money in exchange for drugs. Witnesses
also testified they were assaulted by Marshall and his co-defendants if they did not listen to
him, and that drug withdrawal, sleep deprivation, and threats were used to control them
and run the enterprise.
{¶ 5} Marshall's co-defendant and ex-girlfriend Michelle Martin entered into an
agreement with the state, pleaded guilty to reduced charges, and testified that in about
2015, she began to live with him in hotel rooms on "the north side, Delaware, Worthington,
Westerville," and helped him run the prostitution ring. Id. at 859. She indicated they
No. 20AP-394 3
usually booked two rooms, and that "me and [Marshall] would have one and the girls would
have one * * * [s]o they could do dates." Id. at 853. She confirmed that while she often
booked the rooms using prepaid debit cards on Priceline.com, Marshall paid for those
cards. She also testified she would assist the trafficking victims in posting ads on
Backpage.com using prepaid debit cards, but that Marshall directed which ads would be
placed and when. She confirmed that Marshall ultimately financed the online
advertisements, affirming that "without [Marshall] and his money, they can't post the ads."
Id. at 1008. She also confirmed that Marshall charged the trafficking victims for "[t]heir
room, hygiene, cigarettes, food, gas money, anything, everything," and that he controlled
them with drugs, debt, sleep deprivation, and violence. Id. at 1009. She specifically
indicated that Marshall kept a firearm, and that while he was soft-spoken "you would
probably get slapped if you didn't listen [to him]." Id. at 881. Martin also testified that
Marshall hit her on several occasions, and that at one point "he just freaked out and
punched me in my nose and made my nose bleed and I had two black eyes for a week." Id.
at 1006. Martin identified Marshall's "favorite" girls as "[T]" and "[R]," and that he liked
them because they made more money than the others and were controllable with drugs.
She indicated, though that R didn't "keep her mouth shut" and that she once saw Marshall
"jerk her out of bed * * * by her hair." Id. at 868-69. Martin was able to specifically identify
at least three women who prostituted for Marshall, identified several others whom he
provided drugs and at least intended and attempted to pimp, and several men who served
the enterprise in various roles—including Marshall's brother and trial co-defendant Jeffrey
Marshall aka "Black," who Marshall sometimes left in charge of the victims and who
sometimes collected money from the victims after dates.
{¶ 6} Other witnesses provided more details. M.W., one of the alleged trafficking
victims, testified she got involved with Marshall’s group to satisfy her heroin dependency
but became trapped once they took control over her phone. She testified that Marshall
began posting Backpage.com advertisements of her without her knowledge and went on to
describe the prostitution scheme that kept women under Marshall's control. Another
alleged victim, T.C., related that she became addicted to opiates as a result of pain
prescriptions for workplace injuries, but she eventually began using heroin and crack, and
began soliciting to provide for her drug addiction. She and her husband began living in
extended-stay hotels in Columbus located on S.R. 161, and first met Marshall when he sold
No. 20AP-394 4
drugs to them. But she eventually began working as prostitute for Marshall on and off at
hotels in that same area during the period between 2012 and 2015 as a way to obtain drugs.
She confirmed that her dates were arranged by ads on Backpage.com obtained using
prepaid debt cards paid for by Marshall, and that Marshall or other alleged dealers that she
owed money to would tell her when to post ads. She provided some financial details of
Marshall's prostitution ring, indicating that at various times there were at least two and as
many as eight women being pimped by him, and describing how she had earned over
$1,000 in one day but "had nothing to show for it" because Marshall collected the money
she earned as a payment for drugs he supplied. Id. at 1046-47. She also confirmed that she
had seen Marshall hit other trafficking victims and "saw him strangle a girl one time," but
Marshall did not hit her because she "did what [she] was supposed to do." Id. at 1050. She
confirmed Martin's role in the operation, and indicated that the men in the operation would
"protect the girls and * * * would also watch us"; meaning they would wait in the bathroom
during dates, "because the guy - - the person doing the date would be intimidated if they
saw men." Id. at 1054-57.
{¶ 7} Sara Wilson testified she met Marshall in 2011, that he was her drug dealer,
and that she was a "middleman" and a "hookup" for some of Marshall's drug customers.
Id. at 474. She indicated she was the person who initially suggested the human trafficking
scheme to Marshall:
We started staying in the hotels around 161 and there was a lot
of girls in the hotels and at first I was just selling the drugs out
of there to a lot of the girls that were in the hotel doing their
own thing with the whole Backpage and I -- I -- I -- I mentioned
that we could -- we could do it too. * * * I had mentioned [to
Marshall] how I had done it before and how I had made money.
The -- I was a lot more sober before, though, than I was this
time around. So the -- the price of the dates weren't like the
same anymore and stuff like that just because, like, once I got
back on drugs you start looking bad and stuff[.] * * * But then
throughout the years, like, some of the girls would go and come.
* * * So there was -- there was [R.C.]. Then there was [R.S.].
There was [D]. There was [M], [T]. Those are the main girls that
was around me when I was -- when I was out there.
Id. at 474-76. Wilson also testified about the design of the Backpage.com advertisements,
the use of prepaid debit cards to purchase ads, and that Marshall was the source of the
money used to buy the cards. She confirmed that Marshall "slapped" R.C. and indicated
No. 20AP-394 5
that he was harder on her than the rest of the victims, in part because she did not bring in
enough money. Id. at 480-81. She also testified that the amount of money the victims owed
to Marshall was always "outrageously more than the amount that we were receiving," that
Marshall often provided them just enough heroin to prevent them from getting sick, and
she was "never" out of debt to Marshall. Id. at 482. Finally, she described one of the men
in the operation as "our babysitter * * *. He sat there to make sure we weren't doing
anything we wasn't supposed to * * * [because Marshall] didn't sit with us all day. He would
be running around and [the 'babysitter'] would be watching us." Id. at 493-94.
{¶ 8} Columbus Police Officer Gillespie testified that while he was working patrol
in the area of the hotels in February 2015, he encountered a bruised, beaten, and frightened
M.W., which led him to a hotel room in which he found several of the other participants in
the enterprise. R.C. testified when she first met Marshall to purchase drugs that he taught
her how to prostitute using Backpage.com, he paid for the ads, he beat her up "a lot like I
was a grown man," all money she brought in from her dates was given to Marshall in
exchange for drugs, and that women who did not surrender the money would be beaten. Id.
at 1164. James Windhorst admitted that he paid S.W. and R.S. for sex after seeing ads for
their services on Backpage.com and eventually began to "take care" of S.W. Id. at 561.
Windhorst specifically testified about one occasion while R.S. was at his home and Marshall
came "kicking at my door" looking for a "scared" R.S. and did not stop until police arrived.
Id. at 563-64. Columbus Police Detective Boyle summarized his involvement in
investigating the trafficking enterprise at the S.R. 161 and Morse Road hotel through his
participation in the Human Trafficking Task Force, which involved assisting in prostitution
stings and drug buys, using Backpage.com to identify human trafficking victims who were
prostituting. He specifically identified Marshall as the "head" of one of the human
trafficking operations working out of the hotels in that area at the time, which he was able
to confirm at the time through surveillance, the execution of a search warrant on Marshall's
residence, and interviews with the women involved. Id. at 1256. At the end of the trial, the
jury found Marshall guilty of one first-degree felony charge of Engaging in a Pattern of
Corrupt Activity, three first-degree felony charges of Trafficking in Persons, two third-
degree felony charges of Compelling Prostitution, and three fourth-degree felony charges
of Promoting Prostitution. He was eventually sentenced to a total of 40 years'
incarceration, and this timely appeal followed.
No. 20AP-394 6
{¶ 9} Marshall first contends that the jury’s verdicts of guilt were not supported by
sufficient evidence. " '[S]ufficiency' is a term of art meaning that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law." State v. Thompkins, 78 Ohio St.3d
380, 386 (1997), superseded by constitutional amendment on other grounds, quoting
Black's Law Dictionary 1433 (6th Ed.1990). "[S]ufficiency is a test of adequacy. Whether
the evidence is legally sufficient to sustain a verdict is a question of law." Id., quoting State
v. Robinson, 162 Ohio St. 486 (1955). "The 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." State v.
Jenks, 61 Ohio St.3d 259 (1999), paragraph two of the syllabus, following Jackson v.
Virginia, 443 U.S. 307 (1979). The essential elements of the crimes for which Marshall was
indicted and convicted are as follows:
• R.C. 2905.32, Trafficking in Persons—knowingly recruit, lure, entice, isolate,
harbor, transport, provide, obtain, or maintain, an individual in involuntary servitude if the
offender knows that individual will be compelled to engage in sexual activity for hire.
"Compulsion" need not be openly displayed or physically exerted, and may be shown if the
state proves that the victim's will was overcome by force, fear, duress, intimidation, or
fraud.
• R.C. 2907.21, Compelling Prostitution—knowingly compel another to engage
in sexual activity for hire. "Compulsion" need not be openly displayed or physically exerted,
and may be shown if the state proves that the victim's will was overcome by force, fear,
duress, intimidation, or fraud.
• R.C. 2907.22, Promoting Prostitution—knowingly maintain or have an
interest in a brothel, supervise prostitutes, transport persons to facilitate sexual activity for
hire, or induce or procure another to engage in sexual activity with the purpose of
facilitating a violation of this statute.
• R.C. 2923.32(A)(1), Engaging in a Pattern of Corrupt Activity—No person
employed by, or associated with, any enterprise shall conduct or participate in, directly or
indirectly, the affairs of the enterprise through a pattern of corrupt activity. An "enterprise"
includes any individual, sole proprietorship, partnership, limited partnership, corporation,
No. 20AP-394 7
trust, union, government agency, or other legal entity, or any organization, association, or
group of persons associated in fact although not a legal entity, and includes illicit as well as
licit enterprises. "Conduct" requires an element of direction regarding the enterprise, and
"participation" requires taking some part in directing the enterprise's affairs. A "pattern"
means two or more incidents of corrupt activity, and as it relates to this case "corrupt
activity" is engaging in, attempting to engage in, conspiring to engage in, or soliciting,
coercing, or intimidating another person to engage in any violation of the Compelling
Prostitution and Promoting Prostitution statutes when the violation or combination of
violations involve proceeds, payments, claims, or value that exceeds $1,000, or any
violation of the Trafficking in Persons statute to the extent the violation is not based solely
on the same conduct that constitutes corrupt activity in violation of the Compelling
Prostitution and Promoting Prostitution statutes. Engaging in a pattern of corrupt activity
is a strict liability offense.
{¶ 10} We conclude that the testimony from Martin, M.W., S.W., R.C., and
Detective Boyle provided sufficient evidence for appellant's convictions. Martin and M.W.
both gave ample testimony establishing the elements of trafficking in persons, promoting
prostitution, and compelling prostitution related to each of the trafficking victims.
Detective Boyle and Martin, amongst others, gave clear evidence establishing the existence
of a criminal enterprise, and the testimony of others established more than two specific
incidents of corrupt activity in the form of compelling and promoting prostitution. We
cannot say the state failed to meet its burden as to any of these offenses, and it almost goes
without saying that a rational trier of fact could have found all of the offenses proven beyond
a reasonable doubt. Appellant's first assignment of error is overruled.
{¶ 11} Marshall next contends that the manifest weight of the evidence presented at
trial did not support his convictions. Whether a finding of guilt is supported by the
"manifest weight" of the evidence requires evaluation of the credibility and weight of the
testimony, which are questions primarily for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. The jury, or the court in a bench trial, may
take note of inconsistencies at trial and resolve them accordingly, "believ[ing] all, part, or
none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958,
¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964). Therefore, "[w]hen a court of appeals
No. 20AP-394 8
reverses a judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's
resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982). An appellate court considering a manifest weight challenge "may not
merely substitute its view for that of the trier of fact, but must review the entire record,
weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the 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." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 12} But this is not such a case. Taken as a whole, the testimony and record
contains ample evidence of Marshall's responsibility for all alleged crimes, and the fact that
the jury chose to believe witnesses whose memories were allegedly clouded by drug abuse
does not render his convictions against the manifest weight of the evidence. Accordingly,
Marshall's second assignment of error lacks merit and is overruled.
{¶ 13} In his third assignment of error, Marshall asserts that the trial court lacked
jurisdiction and that venue was improper. His general argument here is not that the sexual
conduct or sexual activity offenses did not occur within the time frame set within the
indictment, or that the actions occurred in a different jurisdiction, but rather that the state
failed to prove the specific dates and specific times that the alleged offenses occurred and
also failed to specifically prove that they occurred in Franklin County.
{¶ 14} R.C. 2941.03(E) provides that "[a]n indictment * * * is sufficient if it can be
understood there from * * * [t]hat the offense was committed at some time prior to the time
of finding of the indictment." And in State v. Sellards, 17 Ohio St.3d 169, 171 (1985), the
Supreme Court of Ohio observed that "precise times and dates are not essential elements
of offenses. Thus, the failure to provide dates and times in an indictment will not alone
provide a basis for dismissal of the charges. A certain degree of inexactitude of averments,
where they relate to matters other than elements of the offense, is not per se impermissible
No. 20AP-394 9
or necessarily fatal to a prosecution." And this court has held that "[p]ursuant to R.C.
2941.08, stating the time of the offense imperfectly does not affect a judgment where time
is not of the essence of the offense." State v. Acquista, 10th Dist. No. 95APA04-431 (Dec.
12, 1995), 1995 Ohio App. LEXIS 5476, **24-25. Quoting Tesca v. State, 108 Ohio St. 287(1923), we observed that it has long been the law in Ohio that " 'in a criminal charge the
exact date and time are immaterial unless in the nature of the offense exactness of time is
essential. It is sufficient to prove the alleged offense at or about the time charged.' "
Acquista at *25 quoting Tesca, paragraph one of the syllabus.
{¶ 15} Additionally, the Ohio Constitution, Article I, Section 10 provides an accused
the right to "a speedy public trial by an impartial jury of the county in which the offense is
alleged to have been committed." The section "fixes venue, or the proper place to try a
criminal matter." State v. Headley, 6 Ohio St.3d 475, 477 (1983), and a "conviction may
not be had in a criminal case where the proof fails to show that the crime alleged in the
indictment occurred in the county where the indictment was returned." State v. Nevius,
147 Ohio St. 263 (1947), paragraph three of the syllabus. "[I]t is not essential that the venue
of the crime be proven in express terms, provided it be established by all the facts and
circumstances in the case, beyond a reasonable doubt, that the crime was committed in the
county and state as alleged in the indictment." State v. Dickerson, 77 Ohio St. 34 (1907),
paragraph one of the syllabus. In State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688,
¶ 19, the Supreme Court observed that "[t]he state has the obligation to ensure the proper
venue within the indictment, for the indictment puts the defendant on notice and the state
to its proof," but also noted that "[t]he General Assembly has given the state considerable
flexibility with respect to establishing venue when the state cannot determine the precise
location at which the offense took place. See, e.g., R.C. 2901.12(G), which allows for an
offense that was committed in any of two or more jurisdictions to be charged in any of those
jurisdictions." Moreover, this court has recently taken judicial notice of the boundaries of
Franklin County. State v. Rohrig, 10th Dist. No. 20AP-579, 2021-Ohio-3903, ¶ 4, fn. 1
(quoting prior cases and judicially noticing "the geographic fact that the territorial
boundaries of Westerville extend into both Franklin County and Delaware County. 'Courts
may take judicial notice of geographical facts which are matters of common knowledge,
particularly those existing within the jurisdiction of the court' "). (Internal quotations
omitted.)
No. 20AP-394 10
{¶ 16} The state responds that the indictment alleged actions between November 1,
2012 and February 28, 2015, that Marshall stipulated to records from Backpage.com and
local hotels, which established both that rooms in Worthington and Columbus were rented
during February and March that were allegedly used for prostitution, and Marshall and his
co-defendants paid for prostitution advertisements on Backpage.com during the preceding
months. The state also relies on the testimony of Detective Boyle who indicated that the
hotels used by Marshall and his co-defendants were "around 161, Morse Road, somewhat
23 and 270 area." (Tr. at 1242.) Moreover, the record does contain specific testimony
describing an incident where a john nicknamed "Millionaire Mike" paid Marshall $2,000
to "have" witness S.W. Id. at 551.
{¶ 17} The state was not required to provide specific dates or times of the activities
that led to his convictions, as it definitely did provide evidence that those activities occurred
within the time frame established in the indictment. Moreover, the state provided evidence
that activities occurred at specific addresses in Columbus and Worthington that are within
Franklin County. Even though no particular witness uttered the words "Franklin County,"
Marshall has not established that any of the offenses occurred in a different county. We
therefore overrule Marshall's third assignment of error.
{¶ 18} Marshall next contends that the testimony of a state witness should have been
excluded, and that the improperly admitted testimony was crucial to the state's case.
Marshall argues that the court should have stricken the testimony of R.C., a witness for the
state who was hostile and uncooperative on the stand when Marshall's counsel cross-
examined her regarding her criminal history and prior inconsistent statements. Id. at 1188-
99. R.C. refused to answer counsel's questions regarding her criminal history and cursed
at Marshall's counsel multiple times, leading the court to call a recess.
{¶ 19} Ohio Evid.R. 403(A) provides that exclusion of relevant evidence is
mandatory where the "probative value is substantially outweighed by the danger of unfair
prejudice." Although the terms of Evid.R. 403(A) are "mandatory," a trial court has broad
discretion in determining whether to admit or exclude evidence. Krischbaum v. Dillon, 58
Ohio St.3d 58, 66 (1991). Thus, "[a]bsent an abuse of discretion that materially prejudices
a party, the trial court's decision will stand." Id.No. 20AP-394 11
{¶ 20} Evid.R. 403 manifests a definite bias in favor of admissibility. First, the
Supreme Court instructs that "[e]mphasis must be placed on the word 'unfair.' Unfair
prejudice is that quality of evidence which might result in an improper basis for a jury
decision." State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 24. And this court has
held that "[a]lthough evidence may be damaging or harmful to the defendant, that does not
necessarily mean that the evidence is prejudicial under the rules of evidence. Only when
the evidence induces the jury to decide the case on an improper basis, i.e., an emotional
one, does the defendant suffer material prejudice." Kelm v. Conkel, 10th Dist. No. 16AP-
494, 2017-Ohio-8545, ¶ 10. Second, the dangers or considerations must "substantially"
outweigh probative value before evidence should be excluded. "[R]elevant evidence,
challenged as being outweighed by its prejudicial effects, should be viewed in a light most
favorable to the proponent of the evidence, maximizing its probative value and minimizing
any prejudicial effect to one opposing admission." State v. Maurer, 15 Ohio St.3d 239, 265
(1984).
{¶ 21} Applying the foregoing analysis to the record, Marshall's contention lacks
merit. His counsel was able to establish that R.C. had entered into a pretrial plea bargain
that had revoked the remainder of her postrelease control, and while R.C. refused to answer
questions about her criminal history, Marshall's counsel was able to get that evidence in the
record by stipulation. Marshall sought to strike her testimony in its entirety the following
day but the court denied the motion, noting that "the defendant [sic] did not refuse entirely
to answer questions posed by [Marshall's counsel]," and that counsel "withdrew the line of
questioning regarding the witness' criminal history and came to a stipulation with the
State." (Tr. at 1235.) Accordingly, it was well within the discretion of the court to deny
Marshall's motion to strike testimony—the fact that a state witness became hostile and rude
to defense counsel is not in and of itself a sufficient basis to establish a due process violation,
and the decision to stipulate to the witness' prior convictions rendered the witness' actions
wholly nonprejudicial. We therefore overrule Marshall's fourth assignment of error.
{¶ 22} Finally, Marshall asserts that the trial court committed plain error by
improperly instructing the jury on accomplice liability. He notes that the transcript
indicates that the court's verbal instructions used an incorrect word—specifically, the court
apparently instructed the jurors that "the admitted or claimed complicity of a witness may
No. 20AP-394 12
affect his credibility and make his testimony subject to grave suspension and require that it
be weighed with great caution," using the word "suspension" rather than the correct
"suspicion." (Emphasis added.) Id. at 1494-95. Marshall did not object when the
instruction was given.
{¶ 23} In general, an accused's failure to raise an issue in the trial court "forfeits all
but plain error, and a forfeited error is not reversible error unless it affected the outcome of
the proceeding and reversal is necessary to correct a manifest miscarriage of justice." State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. In Rogers, the Supreme Court
observed:
Crim.R. 52(B) affords appellate courts discretion to correct
"[p]lain errors or defects affecting substantial rights"
notwithstanding the accused's failure to meet his obligation to
bring those errors to the attention of the trial court. However,
the accused bears the burden of proof to demonstrate plain
error on the record, and must show an error, i.e., a deviation
from a legal rule that constitutes an obvious defect in the trial
proceedings. However, even if the error is obvious, it must have
affected substantial rights, and we have interpreted this aspect
of the rule to mean that the trial court's error must have
affected the outcome of the trial. The accused is therefore
required to demonstrate a reasonable probability that the error
resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims.
But even if an accused shows that the trial court committed
plain error affecting the outcome of the proceeding, an
appellate court is not required to correct it; we have
admonish[ed] courts to notice plain error with the utmost
caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.
(Emphasis sic.) (Internal citations and quotations omitted.) Id. at ¶ 22-23. Moreover, this
court has held that we "will reverse on plain error based on an erroneous jury instruction
only upon a showing that the outcome clearly would have been different absent the error."
(Internal citations and quotations omitted.) State v. Mankin, 10th Dist. No. 19AP-650,
2020-Ohio-5317, ¶ 18. On review, it seems clear from the transcript that either the trial
court misspoke or the court reporter mistranscribed a word in the instructions. But the
state observes that the written jury instructions—which were provided to the jury and the
jury was invited to review even as the instructions were being read by the judge—were
No. 20AP-394 13
correct, and more importantly, that Marshall has not demonstrated or even attempted to
demonstrate that the court's error had any effect on the outcome of the case. We agree—
even if the court's mistake was "plain," under these circumstances we cannot say that it was
prejudicial to Marshall or undermined his right to a fair trial, and therefore does not rise to
the level of plain error. Accordingly, Marshall's fifth assignment of error is overruled.
{¶ 24} For all these reasons, Marshall's five assigned errors are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
MENTEL and MCGRATH, JJ., concur.