State v. Boucher , 2022 Ohio 978 ( 2022 )

[Cite as State v. Boucher, 2022-Ohio-978.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 21CA0054
:
STEVEN T. BOUCHER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking Municipal Court,
Case No. 21TRC00946
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 24, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
J. MICHAEL KING SIERRA SEE
Newark Law Department BURKETT & SANDERSON, INC.
40 West Main Street 73 N. Sixth St.
Fourth Floor Newark, OH 43055
Newark, OH 43055
[Cite as State v. Boucher, 2022-Ohio-978.]
Delaney, J.
{¶1} Appellant Steven T. Boucher appeals from the July 1, 2021 Judgment Entry
of Conviction of the Licking Municipal Court. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record including appellee’s bill
of particulars, a suppression hearing on April 15, 2021, and a jury trial on July 1, 2021.
{¶3} This case arose on February 2, 2021, when Trooper Coffland of the Ohio
State Highway Patrol was sitting stationary in a parking lot off 30th Street in the town of
Heath. Coffland observed a green Saturn Ion operating at a very high rate of speed
proceeding south on 30th Street. Coffland followed the vehicle and noted the registration.
Coffland observed the vehicle turn right onto State Route 79 without signaling and he
paced the vehicle’s speed at 54 miles per hour. The vehicle also appeared to be weaving
within its lane.
{¶4} Coffland checked the vehicle registration which came back to a female,
although a male was driving. Coffland observed the white male driver was not wearing a
seat belt. The vehicle turned left onto Irving Wick Drive with Coffland following. The
registered owner of the vehicle lived on Irving Wick Drive. The vehicle made several
other turns. Coffland did not initiate a traffic stop but turned around on River Oaks Drive
and proceeded back onto Irving Wick Drive westbound.
{¶5} The same green sedan then passed Coffland eastbound at a high rate of
speed. Coffland activated his radar and determined the vehicle’s speed was 63 miles per
hour in a 35-mph zone.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶6} Coffland caught up to the vehicle as it pulled into a residential driveway on
Irving Wick Drive East. Coffland initiated a traffic stop and pulled in behind the vehicle.
{¶7} Coffland approached the driver—appellant--as he exited the sedan.
Coffland asked appellant for his operator’s license, registration, and proof of insurance.
Appellant said these items were in the house, along with his ID. Coffland did not permit
appellant to enter the house to retrieve the items.
{¶8} Coffland detected a very strong odor of an alcoholic beverage emanating
from appellant’s person and noted his bloodshot, glassy eyes. Coffland asked appellant
why he was driving so fast and appellant replied, “No reason.” Coffland told appellant he
observed him driving for some time before the stop and asked him again why he was
speeding. Appellant responded, “Because I was drinking and I have priors.” Coffland
told appellant he could smell the alcohol on his breath and asked if appellant had an ID;
appellant then provided ID and was identified as Steven Boucher. Appellant further stated
he was picking up pizza to bring home.
{¶9} Coffland prepared to administer standardized field sobriety tests on a flat
surface but appellant said he would not complete them; appellant affirmatively stated he
refused to perform field sobriety tests. Coffland asked to check appellant’s eyes and
appellant refused.
{¶10} Coffland arrested appellant for O.V.I. and Mirandized and searched him.
Appellant asked if he could smoke a cigarette but the trooper refused because appellant
lied about his ID card and would not cooperate with field sobriety tests. Appellant then
stated he just got off probation for a prior O.V.I. and he knows how the process works.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶11} Appellant’s vehicle was towed. During the inventory search, a small amount
of marijuana and paraphernalia were found on the driver’s-side floorboard. Coffland then
located approximately 48 grams of “mushrooms” in the glove compartment.1
{¶12} Appellant was transported to the Licking County Jail. After he was read the
contents of the BMV 2255, appellant refused to submit to any chemical tests of his blood,
breath or urine.
{¶13} Appellant was charged by Uniform Traffic Ticket (UTT) with two counts of
O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and 4511.19(A)(2). The UTT notes appellant
has three prior O.V.I. convictions dated 2019, 2016, and 1995. Appellant was also
charged with two counts of driving under suspension pursuant to R.C. 4510.14 and
4510.037(J). Appellant was charged with one count of speeding pursuant to R.C.
4511.21 and one count of failure to wear a seat belt pursuant to R.C. 4513.263(B)(1).2
{¶14} Appellant entered pleas of not guilty. On March 3, 2021, he filed a motion
to suppress all evidence stemming from the traffic stop and subsequent investigation,
arguing the trooper lacked reasonable suspicion to stop him. Appellee filed a
memorandum contra. The matter proceeded to evidentiary hearing on April 15, 2021.
On April 16, 2021, the trial court filed a judgment entry overruling appellant’s motion to
suppress.
1 Copies of the citations for the minor misdemeanors are in the record but not the outcome
of the charges, if any. Nor is there any further reference to the mushrooms.
2 Appellant was also cited for one count of possession of drug paraphernalia pursuant to
R.C. 2925.141 and one count of possession of marijuana pursuant to R.C. 2925.11(C)(3),
both minor misdemeanors.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶15} The case proceeded to trial by jury and appellant was found guilty as
charged.3 The trial court sentenced appellant to a jail term of one year plus three days,
to be served consecutively.
{¶16} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶17} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING
THE DEFENDANT-APPELLANT’S MOTION TO SUPPRESS EVIDENCE.”
{¶19} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN FAILING TO
DECLARE A MISTRIAL WHEN THE TRIAL COURT’S MASK POLICY RESULTED IN
UNDUE PREJUDICE AGAINST THE DEFENDANT IN VIOLATION OF DUE PROCESS
AND EQUAL PROTECTION.”
{¶20} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE
ENTIRETY OF THE CONTENTS OF A BMV RECORD TO BE ADMITTED WHEN ITS
PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF
UNFAIR PREJUDICE AGAINST DEFENDANT-APPELLANT.”
ANALYSIS
I.
{¶21} In his first assignment of error, appellant argues the trial court should have
granted his motion to suppress. We disagree.
3The minor misdemeanor traffic offenses were tried to the Court and appellant was found
guilty.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶22} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶23} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court’s conclusion,
[Cite as State v. Boucher, 2022-Ohio-978.]
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶24} In the instant case, appellant argues the trooper lacked reasonable and
articulable suspicion for the traffic stop. The Fourth Amendment to the United States
Constitution prohibits warrantless searches and seizures, rendering them per se
unreasonable unless an exception applies. Katz v. United States, 389 U.S. 347, 357, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or Terry stop, is a common
exception to the Fourth Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the “balance between the public interest and
the individual's right to personal security” tilts in favor of a standard less than probable
cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported
by reasonable suspicion to believe that criminal activity “may be afoot.” United States v.
Brignoni–Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States
v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In Terry, the Supreme
Court held that a police officer may stop an individual if the officer has a reasonable
suspicion based upon specific and articulable facts that criminal behavior has occurred
or is imminent. See, State v. Chatton, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237 (1984).
{¶25} The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.” State
v. Andrews, 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271 (1991); State v. Bobo, 37 Ohio
St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States has re-
[Cite as State v. Boucher, 2022-Ohio-978.]
emphasized the importance of reviewing the totality of the circumstances in making a
reasonable-suspicion determination:
When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that
they must look at the “totality of the circumstances” of each case to
see whether the detaining officer has a “particularized and objective
basis” for suspecting legal wrongdoing. This process allows officers
to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them that “might well elude an untrained person.”
Although an officer's reliance on a mere “hunch” is insufficient to
justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.
United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002), citing United States v. Cortez, 449 U.S. 411,
417–418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶26} Traffic stops based upon observation of a traffic violation are constitutionally
permissible. Dayton v. Erickson, 76 Ohio St.3d 3, 11–12, 1996-Ohio-431, 665 N.E.2d
1091. This Court has held that any traffic violation, even a de minimis violation, may form
a sufficient basis upon which to stop a vehicle. State v. Bangoura, 5th Dist. No. 08 CA 95,
2009-Ohio-3339, 2009 WL 1916902, ¶ 14, citing State v. McCormick, 5th Dist.
[Cite as State v. Boucher, 2022-Ohio-978.]
No.2000CA00204, 2001 WL 111891 (Feb. 2, 2001); State v. Woods, 5th Dist. Licking No.
12-CA-19, 2013-Ohio-1136, 2013 WL 1209351, ¶ 60.
{¶27} In the instant case, the trooper stopped appellant after observing him
traveling at a high rate of speed for the second time, clocking his speed with radar at 63
mph. Appellant concedes that “had Mr. Boucher been the one speeding, it would have
provided the officer with a constitutionally sufficient basis to effectuate the initial detention
of Mr. Boucher as even a minor equipment violation may provide such grounds.” Brief,
7, citing Dayton v. Erickson, 76 Ohio St.3d 3 (1996). He claims there was no evidence
he was speeding, implying appellee failed to prove his vehicle was the one Coffland
clocked on radar after the second time he observed the vehicle traveling at a high rate of
speed.
{¶28} Appellant’s argument rests upon an implication that the trial court should
not have believed Coffland’s testimony. In ruling on a motion to suppress, a trial court
“assumes the role of the trier of fact, and, as such, is in the best position to resolve
questions of fact and evaluate the credibility of the witnesses.” State v. Kopp, 5th Dist.
No. 16-CA-96, 2017-Ohio-4428, 93 N.E.3d 199, ¶ 21, State v. Retherford, 93 Ohio App.3d
586, 592, 639 N.E.2d 498 (2d Dist. 1994), internal citation omitted. We are charged with
independently determining, without deference to the trial court's conclusion, whether the
facts before us on the record meet the appropriate legal standard. State v. Levengood,
5th Dist. No. 2015AP090053, 2016-Ohio-1340, 61 N.E.3d 766, ¶ 29, citing State v. Fisher,
5th Dist. Fairfield No. 13CA35, 2014-Ohio-3029, 2014 WL 3372484, ¶ 44, internal citation
omitted.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶29} Upon our review of the record, we find evidence in the record, in the form
of the trooper’s testimony, supporting the traffic stop. Coffland testified that he initially
observed appellant speeding when he was sitting in a parking lot; he did not confirm the
vehicle’s speed with radar at that time but it was obvious to him that the vehicle was
traveling above the posted speed limit. The trooper then followed the vehicle for a brief
period, observing a turn-signal violation and weaving within lanes, but he did not initiate
a traffic stop. When he ran the vehicle’s registration, it came back to an owner on Irving
Wick Drive and the vehicle turned onto Irving Wick Dive. In the trooper’s candid
estimation, his initial observations were enough to pique his interest in the vehicle, but he
decided against a traffic stop; the vehicle turned into a housing area “and he turned he
used his turn signal those two times when he made those turns and I just let him go.
Obviously I was interested in that vehicle but I let him go. I continued on Irving Wick.” T.
Supp., 13.
{¶30} Coffland proceeded on his way until he reached an area where he could
make a U-turn. He proceeded back toward Heath when he noticed a vehicle approaching
him at a high rate of speed and passed him; Coffland activated his rear radar and clocked
the vehicle at 63 mph. When the vehicle passed him, he realized it was the dark green
sedan he observed earlier. Coffland now turned around to follow the vehicle and caught
up to it as it was pulling into a residential driveway.
{¶31} Appellant implies that the Coffland may have clocked the wrong vehicle
after the second observation of speeding, but Coffland followed the vehicle into
appellant’s driveway. Coffland noted the vehicle’s license plate both times, remembering
the vehicle had U.S. Air Force emblems on the trunk and license-plate holder. Appellant
[Cite as State v. Boucher, 2022-Ohio-978.]
implies that if Coffland observed the first speeding incident and the turn-signal violation
as he testified, he should have stopped appellant at that time, therefore throwing his entire
testimony into question. Brief, 6. Our review of the record indicates Coffland was candid
in admitting he was interested in the vehicle, but when it entered the residential
neighborhood he declined to make a traffic stop. It was only when he observed the same
vehicle speeding again that he acted. In the context of Coffland’s entire testimony, his
initial decision to let the driver go in the residential neighborhood makes his testimony
about ensuing events more credible, not less. But as noted supra, the trial court was in
the best position to determine Coffland’s credibility; our role is to determine whether
sufficient facts are in the record to support the trial court’s conclusion.
{¶32} Under the totality of the circumstances, the trooper had reasonable and
articulable suspicion to stop appellant's vehicle. The trial court did not err in overruling
appellant's motion to suppress, and appellant's first assignment of error is therefore not
well-taken.
II.
{¶33} In his second assignment of error, appellant argues the trial court violated
his due process rights in requiring him to wear a mask during voir dire. We disagree.
{¶34} Appellant’s arguments are premised upon assertions of facts not contained
in the record. He claims that he was unvaccinated at trial and it was the trial court’s policy
to require all unvaccinated people to wear masks, thereby treating him differently and
prejudicing him in the eyes of the jury. The trial court’s mask policy is not in the record.
In his brief, appellant states the following without citation to the record:
* * * *.
[Cite as State v. Boucher, 2022-Ohio-978.]
During the voir dire portion of Mr. Boucher’s trial, he was
wearing a mask. After the voir dire process, Counsel requested a
mistrial citing the mask policy and that Mr. Boucher had been unduly
prejudiced to the jury pool. The Court denied this request but did
allow Mr. Boucher to be mask free for the rest of the trial.
* * * *.
Brief, 10-11.
{¶35} We have reviewed the trial record to determine how masks were addressed.
At page 33, the prosecutor during voir dire stated, “Okay I am about done let’s talk about
COVID for a bit. As the judge indicated I am fully vaccinated and so I am not required to
wear a mask at this point in time nor are you unless you feel uncomfortable, but I guess
my questions are if you go to the other courtroom you have the partitions just like we do
here and there is a partition in front of the judges bench and in between the jury and the
witnesses. Does anyone have any concerns about COVID in general? * * * *.”
{¶36} One juror responded she had asthma and it might be difficult to wear a mask
all day; the juror indicated she did have a mask and asthma inhaler with her. T. 34. At
page 37, defense trial counsel began voir dire and stated, * * * * “With that said I haven’t
done very many jury trials wearing a bandit mask either so this is somewhat new to me
and I am going to try to do the best that I can to make sure that you can make out what it
is that I am saying.” These are the only references to masks that we find in the record
through the end of voir dire; we find no reference to the court’s mask policy, appellant’s
vaccination status, whether appellant wore a mask, or any motion for mistrial at the
conclusion of voir dire.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶37} The relevant conversation may have taken place off the record. At page
95, the following statement was made by defense trial counsel after the luncheon recess
outside the presence of the jury:
* * * *.
The third thing is the thing that we did discuss in chambers
and that is the issue with respect to Mr. Boucher and masks at the
start of the trial. At the court’s instruction I had Mr. Boucher in a mask
because he is not vaccinated. The court pointed out to the jurors
that there were issues with respect to vaccinations and how we were
treating them and as a result Mr. Boucher was wearing a mask during
voir dire and the court graciously allowed him to take the mask off
when we started the trial, but my position is that the damage was
done and that a mistrial should have been declared once we were in
front of the jury in that manner. So we would renew our request that
has already been denied for the mistrial * * *.
{¶38} Appellee responded that there was no prejudice to appellant, nor any
inference of guilt, because some jurors wore masks and some didn’t. The trial court
denied the motion for mistrial, noting there is “equal prejudice both ways” because
sometimes the vaccinated are prejudiced against the unvaccinated and vice-versa, but
no prejudice arose against appellant because he was masked during voir dire. T. 97-98.
{¶39} Appellant now equates the wearing of a mask during voir dire with
compelling a defendant to wear prison attire at trial, asserting both courtroom procedures
lead to an inference of guilt by the jury. Appellant also argues that treating unvaccinated
[Cite as State v. Boucher, 2022-Ohio-978.]
defendants differently than vaccinated defendants violates his right to equal protection.
As appellee points out, appellant points to no relevant authority in support of either
assertion.
{¶40} On March 9, 2020, Governor Mike DeWine declared a state of emergency
(Executive Order 2020-01D) in response to the COVID-19 pandemic. A few weeks later,
on March 20, 2020, the Ohio Supreme issued a document entitled, “Guidance to Local
Courts COVID-19 Public Health Emergency.” The Supreme Court followed up with a
series of guidance bulletins regarding how courts should responsibly maintain access to
justice and has assisted trial courts with implementing remote technology and other costs
associated with the pandemic. In re Disqualification of Fleegle, 161 Ohio St.3d 1263,
2020-Ohio-5636, 163 N.E.3d 609, ¶ 5. Further, “[d]uring this public-health emergency, a
judge's priority must be the health and safety of court employees, trial participants, jurors,
and members of the public entering the courthouse. Id. at ¶ 8. In its instructions for
holding trials during the COVID-19 pandemic, the Supreme Court left to “‘the sound
discretion of the local judiciary how to best manage the daily challenges that the Covid-
19 pandemic ha[d] foisted on local courts.” State v. Blenman, 11th Dist. No. 2020-A-0046,
2021-Ohio-3076, 177 N.E.3d 1039, ¶ 46, citing State v. Freeman, 2nd Dist. Greene No.
2020-CA-33, 2021-Ohio-734, 2021 WL 943694, ¶ 21 and State ex rel. McArtor v. Kovack,
158 Ohio St.3d 1472, 2020-Ohio-1489, 143 N.E.3d 508, ¶14, (Kennedy, J., dissenting).
{¶41} Assuming arguendo that the trial court in the instant case required
unvaccinated persons in the courtroom to wear masks; that appellant was unvaccinated;
and that the trial required him to wear a mask during voir dire only, we find no evidence
of prejudice or implication of guilt.
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶42} The Second District Court of Appeals examined a similar argument in State
v. Blair, 2nd Dist. Montgomery No. 28904, 2021-Ohio-3370, in which a trial court’s Covid
policy required the defendant to wear personal protective equipment (PPE) including a
white semi-opaque paper gown over his suit, a clear face guard, and a mask. Id. at ¶ 2.
The requirements in the courtroom were different for other individuals based upon their
“individual risk factors.” Id. The defendant argued that requiring him to wear PPE was
akin to requiring him to wear jail attire because he was treated differently and the jurors
might infer guilt. Upon review, however, the Second District Court of Appeals drew a
sharp contrast between measures to protect public safety versus visible reminders of a
defendant’s incarcerated status that might leave an impression of guilt:
The United States Supreme Court has explained that
“[c]entral to the right to a fair trial, guaranteed by the Sixth and
Fourteenth Amendments, is the principle that ‘one accused of a
crime is entitled to have his guilt or innocence determined solely on
the basis of the evidence introduced at trial, and not on grounds of
official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.’ ” Holbrook v. Flynn, 475
U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), quoting Taylor
v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468(1978). But the Court cautioned that “[t]his does not mean, however,
that every practice tending to single out the accused from everyone
else in the courtroom must be struck down.” Id. A reviewing court
must “look at the scene presented to jurors and determine whether
[Cite as State v. Boucher, 2022-Ohio-978.]
what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant's right to a fair trial; if the
challenged practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is over.” Id. at
572.
Requiring a defendant to wear PPE in a courtroom is not
inherently prejudicial. Contrary to Blair's assertion, wearing a paper
PPE gown is not akin to wearing jail clothing. When a defendant is
required to appear before a jury in jail clothes, “the constant reminder
of the accused's condition implicit in such distinctive, identifiable
attire may affect a juror's judgment.” Estelle v. Williams, 425 U.S.
501, 504-505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (finding such a
practice unconstitutional because no “essential state policy” was
served). We do not think that the same is true of PPE, but even if it
were, requiring PPE was justified by an essential State interest
specific to Blair's trial. A practice that is inherently prejudicial may be
permitted, the Supreme Court has said, “where justified by an
essential state interest specific to each trial.” Holbrook at 569. * * * *.
State v. Blair, 2nd Dist. Montgomery No. 28904, 2021-Ohio-
3370, ¶ 16-17.
{¶43} Practices that are not inherently prejudicial must be approached on a case-
by-case basis. Id., citing Holbrook at 569. We find nothing inherently prejudicial in
requiring certain persons in a courtroom to wear masks, and when we consider whether
[Cite as State v. Boucher, 2022-Ohio-978.]
appellant suffered actual prejudice from doing so, we conclude he did not. The mask
requirement applied equally to jurors and counsel, as demonstrated by the asthmatic juror
and defense trial counsel in his “bandit mask.” We find no evidence in the record that
appellant’s mask during voir dire affected any juror’s judgment or led them to any
conclusion regarding appellant’s vaccination status, much less his guilt.
{¶44} We find no evidence for appellant’s premise that the mask policy was
inherently prejudicial, or that he sustained any prejudice therefrom. Appellant’s second
assignment of error is overruled.
III.
{¶45} In his third assignment of error, appellant argues the trial court erred in
admitting the entire contents of the certified copy of his BMV driving record into evidence.
We disagree.
{¶46} “A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). An abuse of discretion is more than a mere error in judgment; it is a
“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State
Med. Bd. 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). When applying an abuse of
discretion standard, an appellate court may not substitute its judgment for that of the trial
court. Id. Absent an abuse of discretion resulting in material prejudice to the defendant,
a reviewing court should be reluctant to interfere with a trial court’s decision in this regard.
State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
[Cite as State v. Boucher, 2022-Ohio-978.]
{¶47} During trial but outside the presence of the jury, appellant anticipated
appellee would offer into evidence a certified copy of his complete driving record from the
BMV. (Appellee did offer this item of evidence as Exhibit 3.) Appellant offered to stipulate
to a prior O.V.I. conviction and to his prior O.V.I. license suspension to avoid introduction
of the driving record; appellant noted he objected to the content of the BMV record but
not to its admissibility. T. 94-95. Appellant further stated he would stipulate to appellant’s
Exhibit 3, but only to its authenticity. T. 95.
{¶48} The trial court was not required to permit appellant’s stipulations and deny
admittance of the driving record. Appellant was charged with violations of R.C.
4511.19(A)(1)(a) and 4511.19(A)(2); a prior conviction within 20 years is an element of
R.C. 4511.19(A)(2). Appellee was required to present evidence of appellant’s prior O.V.I.
conviction beyond a reasonable doubt; a trial court does not err in allowing appellee to
admit evidence of a prior conviction as such was an element of the offense for which
appellee bears the burden of proof. State v. Holland, 5th Dist. Stark No. 2011 CA 00104,
2012-Ohio-486, ¶ 20, citing State v. Hoover, 123 Ohio St.3d 418, 2009–Ohio–4993. As
appellee points out, the jury was further required to find that appellant had two prior
convictions pursuant to R.C. 4510.21 (failure to reinstate operator’s license) within the
previous three years.
{¶49} Although appellant later sought to strike appellee’s Exhibit 3, the request
was overruled. The jury was instructed not to consider appellant’s prior convictions for
the purpose of determining guilt in the instant case. (T. 159, 166). The jury is presumed
to follow the instructions of the trial court. Pang v. Minch, 53 Ohio St.3d 186, 187, 559
[Cite as State v. Boucher, 2022-Ohio-978.]
N.E.2d 1313 (1990), paragraph four of the syllabus. Appellant has not pointed to any
evidence in the record that the jury failed to do so in this case.
{¶50} Even assuming arguendo the trial court erred in admitting the entire
contents of the driving record, we find no evidence of material prejudice to appellant.
Absent an abuse of discretion resulting in material prejudice to the defendant, a reviewing
court should be reluctant to interfere with a trial court's decision in the admission of
evidence. Sage, supra, 31 Ohio St.3d 173.
{¶51} Appellant’s third assignment of error is overruled.
CONCLUSION
{¶52} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, Earle, J., concur.