State v. Thomas , 2014 Ohio 2920 ( 2014 )

[Cite as State v. Thomas, 2014-Ohio-2920.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26893
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JESSICA L. THOMAS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2012-06-1655
DECISION AND JOURNAL ENTRY
Dated: June 30, 2014
CARR, Judge.
{¶1} Appellant, Jessica Thomas, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} This matter arises out of a fatal traffic accident involving Jessica Thomas and her
fiancé, Jeffrey Spencer, that occurred during the early morning hours of March 31, 2012.
Spencer tragically passed away due to injuries suffered during the accident. The Summit County
Grand Jury indicted Thomas on one count of aggravated vehicular homicide, and three counts of
operating a vehicle under the influence of alcohol or drugs. After Thomas initially pleaded not
guilty to the charges, the matter proceeded to a jury trial. The jury found Thomas guilty of all
four counts in the indictment. The three counts of operating a vehicle under the influence of
alcohol or drugs were merged for the purposes of sentencing, and the trial court imposed a total
prison sentence of three years.
2
{¶3} On appeal, Thomas raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
DEFENDANT-APPELLANT THOMAS’ CONVICTIONS WERE AGAINST
THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} In her first assignment of error, Thomas argues that her convictions were not
supported by sufficient evidence and were against the manifest weight of the evidence. This
Court disagrees.
Sufficiency Challenge
{¶5} Thomas argues that her convictions for aggravated vehicular homicide and
operating under the influence of alcohol or drugs were not supported by sufficient evidence
because the State failed to prove beyond a reasonable doubt that she was operating the 2001 Ford
Taurus at the time of the accident. Thomas specifies in her merit brief that the State failed to
prove that she was driving the vehicle during its case-in-chief, and that the trial court erred by
failing to grant her Crim.R. 29 motion for acquittal.
{¶6} Crim.R. 29(A) provides, in relevant part:
The court on motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or complaint, if the
evidence is insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of acquittal made at the
close of the state’s case.
{¶7} A review of the sufficiency of the State’s evidence and the manifest weight of the
evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th
Dist. Summit No. 19600, 2000 WL 277908 (Mar. 15, 2000). When reviewing the sufficiency of
the evidence, this Court must review the evidence in a light most favorable to the prosecution to
3
determine whether the evidence before the trial court was sufficient to sustain a conviction. State
v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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.
Id. at paragraph two of the syllabus.
{¶8} Thomas was convicted of aggravated vehicular homicide in violation of R.C.
2903.06(A)(1), which states, “No person, while operating or participating in the operation of a
motor vehicle * * * shall cause the death of another * * * [a]s the proximate result of committing
a violation of [R.C.] 4511.19.” Thomas was also convicted of three counts of operating a vehicle
under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), R.C.
4511.19(A)(1)(b), and R.C. 4511.19(A)(1)(j)(vii).
{¶9} R.C. 4511.19(A)(1) states, “No person shall operate any vehicle * * * within this
state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination
of them.
(b) The person has a concentration of eight-hundredths of one per cent or more
but less than seventeen-hundredths of one per cent by weight per unit volume of
alcohol in the person’s whole blood.
***
(j) * * * the person has a concentration of any of the following controlled
substances or metabolites of a controlled substance in the person’s whole blood,
blood serum or plasma, or urine that equals or exceeds any of the following:
***
(vii) The person has a concentration of marihuana in the person’s urine of at
least ten nanograms of marihuana per milliliter of the person’s urine or has a
4
concentration of marihuana in the person’s whole blood or blood serum or plasma
of at least two nanograms per milliliter of the person’s whole blood or blood
serum or plasma.
{¶10} As noted above, Thomas’ central argument on appeal applies to all four of her
convictions as she asserts that the State failed to prove that she was the driver of the vehicle at
the time of the accident.
{¶11} The State presented evidence at trial demonstrating that after going out on the
evening March 30, 2012, Thomas and Spencer were involved in a car accident on State Route
241 in Springfield Township. At approximately 2:40 a.m., a woman named Angelique
Woodward called 911 after noticing that a vehicle had gone off the road. While there were no
eye witnesses to the accident, several first responders and law enforcements officials were
immediately dispatched to the scene. Upon arrival, they discovered that a 2001 Ford Taurus had
gone off State Route 241 and crashed into a tree. The car had flipped onto its left side and its
front end was pressed up against the base of the tree. The vehicle involved contained a bench
seat with an adjustable armrest that could be moved up and down. Thomas’ lower body was
trapped between the steering wheel and the driver’s seat. Spencer’s body was partially ejected
from the vehicle through the driver’s side window. Because the vehicle had flipped on its left
side, first responders found Spencer lying on the ground outside the vehicle with his left leg
trapped behind inside the vehicle. The State presented testimony from a certified technical crash
investigator who suggested that neither person involved in the crash appeared to be wearing a
seatbelt. Lieutenant Brian White of the Springfield Fire Department testified that Thomas was
“pinned underneath the steering wheel and underneath the dash and she was wedged between the
driver’s seat.” Lt. White further testified that he observed Thomas’ body in a position that
seemed natural for someone who had been sitting in the driver’s seat when the car came to rest
5
after the crash. One of Lt. White’s colleagues, Steven Schultz, a firefighter and paramedic for
Springfield Township, specified that Thomas’ feet were trapped near the pedals of the vehicle.
Other witnesses who responded to the scene also testified that Thomas’ body was trapped in the
driver’s seat of the vehicle.
{¶12} Emergency personnel had to cut the steering wheel in order to extract Thomas
from the vehicle. The State presented uncontroverted evidence by way of test results from the
State Highway Patrol’s forensic laboratory that indicated that Thomas was over the lawful blood-
alcohol limit at the time of the accident, and also that Thomas was under the influence of
marijuana at the time of the accident.
{¶13} Schultz further testified that he spoke with Thomas after she was removed from
the front driver’s seat of the vehicle and placed in the ambulance. When asked if she had been
drinking alcohol that evening, Thomas replied that she “had a shit ton.” When Schultz further
inquired into whether Thomas had been driving the vehicle, Schultz heard her say, “uh-huh,”
which he interpreted as an affirmative response.
{¶14} The evidence presented during the State’s case-in-chief was sufficient to
demonstrate that Thomas was driving the vehicle at the time of the accident. Several witnesses
who responded to the accident testified that they found Thomas trapped in a position in the
vehicle that made it apparent that she had been driving, with her lower body trapped under the
steering wheel and her upper-body wedged in the driver’s seat. Moreover, Schultz testified that
Thomas responded in the affirmative when asked if she had been driving the vehicle. This
evidence, when construed in the light most favorable to the State, was sufficient to demonstrate
that Thomas was the driver of the vehicle.
6
Manifest Weight Challenge
{¶15} A conviction that is supported by sufficient evidence may still be found to be
against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals 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 fact[-]finder’s resolution of the
conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases. Otten at 340.
{¶16} In her merit brief, Thomas advocated a manifest weight argument “identical to the
argument set forth under the prior section concerning the sufficiency of the evidence,” but urged
the Court to consider the testimony of the three defense witnesses as well as the State’s one
rebuttal witness. In support of her position, Thomas places particular emphasis on the testimony
of James Crawford, who testified on behalf of the defense as a qualified expert in accident
reconstruction.
{¶17} During Crawford’s testimony, he suggested that the occupants of the vehicle
would have been jarred by three separate collisions during the course of the crash. Namely, the
passengers in the vehicles would have been affected when the vehicle hit a fire hydrant, and then
subsequently when the vehicle hit a large embankment and then proceeded to strike a tree.
7
Crawford specified that the latter two impacts were the most significant, with the collision with
the embankment commencing the process by which Spencer was eventually ejected from the
vehicle. According to Crawford, the collision with the embankment caused the driver to slide
against the window with the front passenger sliding to the driver’s side of the vehicle. Crawford
continued that the driver would have been ejected from the vehicle when the car struck the tree,
with the passenger coming to rest near the driver’s seat. Crawford concluded that based on his
experience and analysis of this case, he believed it was Spencer who was driving the vehicle. On
cross-examination, the State challenged Crawford’s credibility on the basis that he used almost
identical language in a report that he prepared for a separate case.
{¶18} Thomas also testified in her own defense. Thomas testified that she shared the
Ford Taurus with Spencer, but that the car was registered in her name. On the night in question,
Thomas and Spencer smoked marijuana together before going out to a club where they had
several alcoholic beverages. Thomas testified that her last memory was calling her mother from
the club to check on how the couple’s child was doing. The next thing Thomas was able to
remember was awaking in the hospital several days after the accident. Thomas did not have any
recollection of who was driving at the time the accident occurred. In addition to testifying on her
own behalf, Thomas also presented the testimony of Spencer’s sister, Laura Ross, who
confirmed that when she visited Thomas in the hospital, Thomas had no recollection of the
accident.
{¶19} In rebuttal, the State called Sergeant John Thorne of the Ohio State Highway
Patrol. Like Crawford, Sgt. Thorne was qualified as an expert in accident reconstruction. Sgt.
Thorne sharply disagreed with Crawford’s analysis of the crash, and opined that it was Thomas
who was driving the vehicle. While Sgt. Thorne agreed that there were three significant impacts
8
throughout the course of the crash, Sgt. Thorne indicated that the driver would have remained in
the driver’s seat given the nature of the crash. Sgt. Thorne suggested the front passenger would
have passed over the driver as the car sustained multiple impacts and ultimately rotated on its left
side. During cross-examination, defense counsel challenged Sgt. Thorne’s credibility on the
basis that his educational background did not include formal schooling in physics or engineering.
{¶20} After a careful review of the record, this Court cannot conclude that the trier of
fact created a manifest miscarriage of justice in concluding that Thomas was the driver of the
vehicle. As mentioned above, the State provided extensive testimony from emergency
responders and law enforcement officials who observed Thomas pinned in the driver’s seat of the
vehicle. With respect to the expert testimony offered at trial, Thomas’ expert testified that it was
Spencer who was driving the vehicle at the time the accident occurred, while the State’s expert
indicated it was Thomas who was behind the wheel. Each party challenged the credibility of the
expert testimony offered by the opposing party. Though the parties presented conflicting
testimony in this case, we note that “the trier of fact was in the best position to evaluate the
credibility of witnesses, and this Court will not overturn the trial court’s verdict on a manifest
weight of the evidence challenge simply because the trial court chose to believe certain
witnesses’ testimony over the testimony of others.” State v. Ross, 9th Dist. Wayne No.
12CA0007, 2013-Ohio-522, ¶ 16, State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-
Ohio-4082, ¶ 22. Under these circumstances where the State presented ample evidence that
Thomas was driving the vehicle at the time of the accident, we cannot conclude that this is the
exceptional case where the trier of fact clearly lost its way.
{¶21} This first assignment of error is overruled.
9
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
PERMITTED THE STATE OF OHIO TO ELICIT EXPERT TESTIMONY
FROM LAY WITNESSES.
{¶22} In her second assignment of error, Thomas argues that the trial court erred by
permitting the State to elicit expert testimony from lay witnesses. Specifically, Thomas argues
that it was reversible error for the trial court to allow multiple lay witnesses to refer to Thomas as
the driver of the vehicle based on their observations at the scene when they were not qualified as
experts in accident reconstruction. This Court disagrees.
{¶23} Evid.R. 701 states that “[lay] witness’ testimony in the form of opinions or
inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” An appellate court reviews a trial court’s decision pertaining to
the admission of evidence under Evid.R. 701 for an abuse of discretion. Urbana ex rel. Newlin
v. Downing, 43 Ohio St.3d 109, 113 (1989). An abuse of discretion implies that the trial court’s
attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶24} Numerous emergency responders and law enforcement officials who responded to
the scene of the accident were called to testify in this matter. During their testimony, several of
those witnesses referred to Thomas as the “driver” of the vehicle based on their perceptions of
her position in the driver’s seat and the manner in which her lower body was trapped between the
steering wheel and the driver’s seat. During the opening statements, defense counsel objected to
this testimony on the basis that the lay witnesses were not qualified to offer expert opinions on
matters of accident reconstruction and physics. The State responded that it would not be
10
soliciting opinion testimony, and that it intended to ask witnesses about what they observed and
how they went about conducting the investigation. The trial court overruled the objection on the
basis that the witnesses were permitted to testify regarding their observations at the scene of the
accident pursuant to Evid.R. 701, as well as explain the reasoning underpinning their
investigation.
{¶25} Though several witnesses referred to Thomas as the driver of the vehicle when
describing their perceptions of the crash site, defense counsel did not object on each occasion. In
support of his assignment of error, Thomas cites to only two portions of the transcript where the
issue was preserved for appeal. See State v. Dent, 9th Dist. Summit No. 20907, 2002-Ohio-4522,
¶ 6 (holding that a party forfeits all but plain error where it fails to object before the trial court).
One instance was during the direct examination of Lt. Brian White. White referred to Thomas as
the driver of the Ford Taurus on multiple occasions while describing what he observed upon
arriving at the scene. After this happened multiple times, the State asked, “why did you describe
the person pinned as the driver?” At that point, defense counsel objected. The trial judge
overruled the objection but specifically instructed White, “Just [answer] based on what you
observed. * * * [Y]ou’re not supposed to give an opinion. Just explain why you used that
phrase.” Lt. White responded, “I used that phrase because she was pinned underneath the
steering wheel at the driver’s seat.” In regard to Evid.R. 701, the trial judge made it clear that
White could only testify as to what he perceived, and White’s ensuing testimony was limited to a
direct observation. White did not purport to offer an expert opinion, and he commented only
regarding his perceptions at the scene. It follows that the trial court did not abuse its discretion
in permitting the testimony.
11
{¶26} Defense counsel also objected during the redirect examination of Paramedic
Andrew Marchand. Preceding the objection, on direct examination, Marchand referred to
Thomas as the driver of the vehicle on multiple occasions without objection. On cross-
examination, Marchand was asked if he was an expert in accident reconstruction, and he
acknowledged that he was not. Subsequently, the first question asked on redirect examination
was “Mr. Marchand, do you need an accident reconstructionist to tell you that the defendant * *
* was the driver of that vehicle?” Defense counsel objected, and, after a sidebar, the trial court
sustained the objection. The State argued the question was proper given that defense counsel had
opened the door to the inquiry, but the trial court rejected this argument. Defense counsel then
expressed concern that Marchand was essentially being permitted to offer expert testimony. The
trial court reiterated that it was sustaining defense counsel’s objection, and stated that while
Marchand could testify regarding his observations at the scene which triggered his initial
assumption that Thomas was the driver, he was not qualified to draw a conclusion as to who was
driving the vehicle. The trial court further directed the State to “[l]eave the accident
reconstruction out of it.” Marchand subsequently testified that he had assumed Thomas was the
driver based on everything he saw at the scene, particularly her position in the vehicle.
{¶27} As was the case with Lt. White, the trial court unambiguously directed Marchand
to limit his testimony to his direct observations, as provided by Evid.R. 701. Marchand then
confirmed that the inferences he drew at the crash site were based solely on his perception of the
scene. As the trial court sustained defenses counsel’s objection, underscored that Marchand was
not an expert witness, and then made certain that Marchand limited his ensuing testimony to his
perceptions at the scene, we cannot agree with Thomas’ contention that the trial court abused its
discretion.
12
{¶28} In her merit brief, Thomas also includes citations to the testimony several other
witnesses. In those instances, however, defense counsel did not object to the testimony. This
Court reviews an issue for plain error in cases where the appellant has otherwise forfeited the
issue on appeal by failing to raise it below at a time when the trial court had the opportunity to
correct the alleged error. Dent at ¶ 6. In order to succeed on a plain error claim, the appellant
must demonstrate that but for the errors he alleges, the outcome of the trial would clearly have
been different. State v. Waddell, 75 Ohio St.3d 163, 166 (1996); Crim.R. 52(B). Thomas has
not set forth a plain error argument on appeal explaining how the result of trial would have been
different but for this testimony, and it is not the duty of this Court to create a plain error
argument on her behalf. State v. Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925,
¶ 11.
{¶29} The second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED DEFENDANT-APPELLANT THOMAS’ MOTION FOR A NEW
TRIAL PURSUANT TO CRIMINAL RULE 33(A)(2) AND (4).
{¶30} In her third assignment of error, Thomas argues that the trial court improperly
denied her motion for a mistrial. This Court disagrees.
{¶31} In support of her third assignment or error, Thomas argues that the trial court
should have granted her motion for a mistrial because the jury was contaminated when juror
number two made comments during deliberations regarding research he had done outside the
courtroom. Thomas further asserts that the trial court failed to adequately explore juror number
two’s statement that the foreman was “bullying” other members of the jury, and that removing
13
juror number two bolstered the State’s case because juror number two had questioned the State’s
theory of the case during deliberations.
{¶32} A trial court enjoys broad discretion in dealing with matters of juror misconduct
and potential bias. State v. Morris, 9th Dist. Summit No. 25519, 2011-Ohio-6594, ¶ 29, citing
State v. Herring, 94 Ohio St.3d 246, 259 (2002). Thus, an appellate court reviews the trial
court’s denial of a motion for a mistrial for an abuse of discretion. Morris at ¶ 29.
{¶33} “When analyzing a case of alleged juror misconduct, it must be determined (1)
whether misconduct actually occurred and (2) whether the misconduct materially prejudiced the
defendant’s substantial rights.” Morris at ¶ 28, citing State v. Herb, 167 Ohio App.3d 333, 2006-
Ohio-2412, ¶ 6 (9th Dist). Thus, even when juror misconduct has, in fact, occurred, a
complaining party must establish prejudice. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-
5845, ¶ 42, citing Smith v. Phillips, 455 U.S. 209, 217 (1982). The Supreme Court of Ohio has
maintained a “long-standing rule * * * not [to] reverse a judgment because of the misconduct of
a juror unless prejudice * * * is shown.” Adams at ¶ 45, quoting State v. Hipkins, 69 Ohio St.2d
80, 83 (1982).
{¶34} “In cases involving outside influences on jurors, trial courts are granted broad
discretion in dealing with the contact and determining whether to declare a mistrial or to replace
an affected juror.” State v. Schmitz, 9th Dist. Lorain Nos. 11CA010043, 11CA010044, 2012-
Ohio-2979, ¶ 15, quoting State v. Phillips, 74 Ohio St.3d 72, 89 (1995). Moreover, “[a] juror’s
belief in his or her own impartiality is not inherently suspect and may be relied upon by the trial
court.” Schmitz at ¶ 15. “One may not know or altogether understand the imponderables which
cause one to think what he thinks, but surely one who is trying as an honest [person] to live up to
the sanctity of his [or her] oath is well qualified to say whether he [or she] has an unbiased mind
14
in a certain matter.” State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, ¶ 30, quoting
Phillips, 455 U.S. at 217, fn. 7.
{¶35} A review of the trial transcript reveals that on February 20, 2013, after the jury
had entered into deliberations, the trial court was notified by the foreman that juror number two
had conducted an investigation outside of the courtroom. The trial judge called juror number
two into chambers and, with all of the attorneys of record present, engaged in an inquiry about
what had transpired. During that exchange, juror number two admitted to driving by the scene of
the accident, as well as inspecting two vehicles similar to the Ford Taurus involved in the crash.
He conceded that viewing the passenger compartment of the vehicles helped to confirm his prior
understanding of the location of the air bag sensors. Juror number two also admitted to using a
tape measure to measure the windows of his own vehicle. After discussing the nature of his
investigation, juror number two acknowledged that he had shared his findings with the other
jurors during deliberations. He also speculated that the reason the foreman had reported him was
that they had differing views about the case, and that the foreman was “bullying” members of the
jury.
{¶36} Over the objection of defense counsel, the trial court discharged juror number
two. After the trial court handled the dismissal, defense counsel requested that the trial court
voir dire all of the remaining jurors to determine whether it was appropriate to declare a mistrial.
The trial court complied with defense counsel’s request, and subsequently called each of the
remaining jurors into chambers to answer a series of questions. Specifically, each juror was told
that the trial court did not want each individual to disclose their position with respect to the
ultimate resolution of the case. The trial judge then proceeded to ask each juror (1) whether juror
number two had attempted to share any outside information; (2) whether any information shared
15
by juror number two would impact the juror’s ability to decide the case based on the evidence
properly admitted at trial; (3) and whether there were any other unusual dynamics in the jury
room of which the court might need to be aware. While the trial court did not deem it
appropriate to brusquely ask each juror if the foreman had engaged in “bullying,” the trial court
did inquire as to whether there were any areas of concern transpiring during deliberations that
should be brought to the court’s attention. After the trial judge finished this inquiry, the
attorneys of record were then given an opportunity to ask follow up questions.
{¶37} Each of the remaining jurors indicated that they had heard juror number two’s
comments about conducting outside research. Significantly, however, each juror made an
unequivocal statement on the record that those comments would not impact their ability to render
a fair and impartial verdict. Several jurors went as far as to say that the foreman immediately
recognized the problematic nature of juror number two’s comments and sought to ensure that no
inappropriate information was considered during deliberations. Each juror also specified that
there was nothing troublesome about the nature of the discourse in the jury room. While juror
number seven made a reference to a few “alpha men” on the jury, that same juror clarified that
those individuals had been “very helpful in expressing their views” and that it had been “a good
dialogue.” When specifically asked by defense counsel if the “alpha” personalities were
overpowering or dominating in any way, juror number seven responded in the negative. Juror
number ten made a point to say that the deliberations were going exactly as one would have
expected.
{¶38} After careful consideration of the record, we cannot say that the trial court abused
its discretion in denying defense counsel’s motion for a mistrial. The trial court made a direct
inquiry into whether juror number two’s comments had impacted the sanctity of the
16
deliberations, and also whether any other troublesome dynamics had arisen during deliberations.
While juror number two undoubtedly engaged in juror misconduct, there was no indication that
said misconduct influenced the remaining jurors’ ability to decide the case fairly and impartially.
Each juror specifically testified that juror number two’s comments would have no bearing on
their ability to render a fair and impartial judgment. Moreover, each juror stated on the record
that the deliberations had otherwise gone smoothly, and that healthy discussions about the
evidence had taken place. Given the methodical nature of the trial court’s inquiry as well as the
responses offered by the jurors during the voir dire process, we cannot say that the trial court
abused its discretion in denying the motion for a mistrial.
{¶39} Thomas’ third assignment of error is overruled.
III.
{¶40} Thomas’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
17
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
WILLIAM A. VASILIOU II, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.