State v. Tucker , 2019 Ohio 911 ( 2019 )

[Cite as State v. Tucker, 2019-Ohio-911.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2017-12-172
Appellee, : OPINION
3/18/2019
:
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:
WILLIAM R. TUCKER, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2017-01-0028
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee
Michele Temmel, 6 South Second Street, #305, Hamilton, OH 45011, for appellant
M. POWELL, J.
{¶ 1} William Tucker appeals his convictions in the Butler County Court of Common
Pleas for aggravated arson and murder. For the reasons described below, this court affirms
Tucker's convictions.
{¶ 2} This case stems from the death of firefighter Patrick Wolterman, who died in
the line of duty on December 28, 2015, while attempting to extinguish a fire at the home of
Tucker's uncle, codefendant Lester Parker. The state alleged that Parker arranged for
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Tucker to set fire to Parker's home while Parker was away, in exchange for oxycodone
tablets. Parker's motive was to collect insurance proceeds.
{¶ 3} A Butler County grand jury indicted Tucker with two counts of aggravated
arson, violations of R.C. 2909.02(A)(1) and (A)(2), and one count of felony murder, a
violation of R.C. 2903.02(B). In the same indictment, the grand jury charged Parker with
identical counts.
{¶ 4} The matter proceeded to a joint, 9-day, jury trial. The jurors found both men
guilty as charged. The court sentenced each to 15 years to life in prison. Tucker appeals,
raising five assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S
CONVICTIONS AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 7} Tucker argues that the state's evidence was legally insufficient to convict him
of the aggravated arson counts as the evidence against him was entirely circumstantial.
Tucker further argues that his convictions were against the weight of the evidence.
{¶ 8} The concept of legal sufficiency of the evidence refers to whether the
conviction can be supported as a matter of law. State v. Everitt, 12th Dist. Warren No.
CA2002-07-070, 2003-Ohio-2554, ¶ 10. In reviewing the sufficiency of the evidence, an
appellate court must 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. State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
The relevant inquiry is whether, after reviewing the evidence in a light most favorable to the
prosecution, any rational trier of fact would have found all the essential elements of the
crime proven beyond a reasonable doubt. Id.
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{¶ 9} To determine whether a conviction is against the manifest weight of the
evidence, a reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.
An appellate court will overturn a conviction due to the manifest weight of the evidence only
in extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal. Id. at ¶ 18. A finding that a conviction is supported by the manifest weight of
the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler
No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 10} The trial evidence revealed that Parker, who lived with his wife Bertha at 1310
Pater Avenue in Hamilton, Ohio, had debts exceeding $143,000. On the day of the fire,
approximately $60,000 of those debts were past due. Shortly before Christmas Eve 2015,
Parker began moving various items out of 1310 Pater Avenue. Items removed included
framed family photographs, decorative objects and mementos, and important documents.
On December 27, 2015, Parker and Bertha went to Las Vegas on a planned vacation.
{¶ 11} Tucker, originally from Hamilton, Ohio, resided in Richmond, Kentucky at the
time of the fire. During the evening hours of December 27, 2015, Kim Brooks, one of
Tucker's girlfriends, requested that Courtney Basinger drive to Richmond to bring Tucker
back to Hamilton. Basinger understood that she was bringing Tucker to Hamilton so that
he could obtain oxycodone tablets. Basinger understood that she would be compensated
for transporting Tucker with gas money and oxycodone.
{¶ 12} Basinger was accompanied by Brooks, Basinger's two children, and the
children's teenaged babysitter. Basinger met Tucker at a CVS Pharmacy in Richmond.
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Tucker was carrying a gym bag. Upon their return to Hamilton, Basinger dropped off the
children and the babysitter and she, Tucker, and Brooks drove to the east side of Hamilton.
{¶ 13} Tucker instructed Basinger to park on Grand Boulevard between Pater
Avenue and Allstatter Avenue. Basinger testified that Tucker exited the vehicle with the
gym bag and walked towards Pater Avenue. Tucker then turned onto Pater Avenue and
disappeared from her view as he continued up the street. Basinger estimated that Tucker
returned to the vehicle approximately 20 minutes after leaving. As he approached the
vehicle, he was breathing heavily, carrying the gym bag, a gas can, and a padlock.
Basinger's vehicle was confirmed to have been in the vicinity of 2400-2510 Grand
Boulevard on December 28, 2015 at 12:45 a.m. based upon a police cruiser license plate
reader report. Google GPS data taken from Basinger's cellular phone records indicated
that her phone was stationary between 12:41 a.m. and 12:52 a.m.
{¶ 14} At 1:05 a.m. on December 28, 2015, Officer Brian Gleason of the Hamilton
Police Department was dispatched to 1310 Pater Avenue in reference to an intrusion alarm.
Upon arrival he discovered smoke coming from the home. He conducted a perimeter sweep
and noted that the rear cellar doors to the home were open. It was later determined that
the cellars doors had been secured by a hasp and padlock. Based on damage to the hasp,
detectives believed that it had been broken off with a pry tool.
{¶ 15} The fire department responded at 1:15 a.m. Firefighter Wolterman entered
the home through the front door. By then, however, an arson fire set in the home's
basement had severely damaged the joists supporting the first floor. The floor collapsed
and Wolterman fell through to the basement and he perished from the effects of the fire.
{¶ 16} In the ensuing investigation, Detective Webb of the Hamilton police
department travelled to Richmond to question Tucker about the fire. Tucker denied any
involvement and claimed that he was in Richmond when the fire occurred.
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{¶ 17} The evidence indicated that Tucker routinely used the cellular phones of
friends and family. Tucker also communicated via Facebook messenger.
{¶ 18} Detectives obtained records for the cellular phones of Parker, Tucker's
brother Stacy, Tucker's girlfriend Linda Rose, a prepaid cellular phone Parker purchased
and activated while he was in Las Vegas and a pay phone in a Marathon gas station parking
lot located across from the Cove Motel in Hamilton.
{¶ 19} Stacy testified that he and Parker rarely spoke to one another. However, on
December 20, 2015, eight days prior to the fire, records indicated a 27-minute call, initiated
by Parker to Stacy's cellular phone.
{¶ 20} Although Linda Rose knew neither Parker nor his wife Bertha, a call was
placed from her cellular phone to Parker's cellular phone on December 27, 2015 at 1:38
p.m. The call lasted 27 seconds.
{¶ 21} At 3:15 a.m., on December 28, 2015, Tucker sent Rose a Facebook message
that read, "Baby Doll. Done with the job. Got to get some rest and call you tomorrow."
{¶ 22} During the afternoon of December 28, 2015, there were four calls between
Stacy's cellular phone and either Parker's cellular phone or Parker's prepaid Las Vegas
phone. An additional call occurred between Stacy's cellular phone and Parker's cellular
phone on December 29, 2015 at 11:22 a.m.
{¶ 23} Tucker and Brooks stayed at the Cove Motel in Hamilton on December 29
and left on December 30, 2015. On December 30, 2015 there were seven phone calls
placed from either Parker's cellular phone or his Las Vegas prepaid phone to the pay phone
across the street from the Cove Motel.
{¶ 24} James Parker (unrelated) dated Parker's daughter, Melissa Jones. He
testified that in June 2015 he was helping Parker install siding on Parker's garage located
next to 1310 Pater Avenue. He commented to Parker about recent renovations to 1310
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Pater Avenue. Parker told him that the renovations had occurred because of a fire that he
and his nephew had set for "insurance reasons."
{¶ 25} At trial, Tucker testified and admitted that he lied to the detective who
questioned him about his whereabouts on the morning of the fire. Tucker admitted that
Basinger had transported him to the area of Pater Avenue where he briefly left the vehicle.
However, Tucker claimed that his purpose was not to set a fire but to obtain oxycodone
tablets from Melissa Jones. Tucker asserted that he had arranged to meet Melissa around
midnight on Allstatter Avenue where he purchased 30 oxycodone tablets from her and left.
{¶ 26} Upon a thorough review of the record, this court concludes that the jurors did
not lose their way in finding Tucker guilty. The state presented substantial circumstantial
evidence establishing that Tucker and Parker conspired to commit arson and that Tucker
was the individual who set fire to Parker's home. Tucker was in communication with Parker
before and after the fire and admitted he was on the scene at the very moment the fire
started. Basinger testified that Tucker was carrying a gas can upon returning to the vehicle.
{¶ 27} Both Tucker and Parker testified. Parker denied being involved in the fire and
claimed that the state's witnesses, including both of his daughters, were liars. Tucker's
defense case rested on the likelihood of jurors believing that he just happened to plan to
meet Parker's daughter a block away from her father's home at the precise time an arson
fire was committed there. The jury is in a better position than this court to weigh credibility.
This is not a case where the evidence weighs heavily against the conviction. This court's
determination that the greater weight of the evidence supports Tucker's conviction is
dispositive of the issues of the sufficiency of the evidence. Jones, 2013-Ohio-150 at ¶ 19.
This court overrules Tucker's first assignment of error.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE
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IT FAILED TO GRANT DEFENDANT'S MOTION FOR RELIEF FROM PREJUDICIAL
JOINDER.
{¶ 30} Tucker argues that the trial court plainly erred when it did not sever his joint
trial. Notice of plain error is to be taken with the utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. Crim.R. 52(B); State
v. Lott, 51 Ohio St. 3d 160, 164 (1990).
{¶ 31} Crim.R. 8(B) allows for joinder of defendants in the same indictment. Joinder
of defendants and the avoidance of multiple trials is favored in the law. State v. Thomas,
61 Ohio St. 2d 223, 225 (1980). Joinder conserves judicial and prosecutorial time, lessens
the considerable expense of multiple trials, diminishes inconvenience to witnesses, and
minimizes the possibility of incongruous results in successive trials before different juries.
Id. "[J]oinder of defendants is proper so long as all defendants participated in the same
series of transactions leading to the charges even though not all defendants participated in
every act. * * * Not all defendants need be charged in each count * * * nor would differing
levels of culpability among defendants necessarily justify severance." State v. Schiebel, 55
Ohio St. 3d 71, 88-89 (1990).
{¶ 32} Crim.R. 14 permits a trial court to sever a joint trial and grant separate trials if
joinder has a prejudicial effect on the accused. However, the accused bears the burden of
proving prejudice. State v. Coley, 93 Ohio St. 3d 253, 259 (2001). "The test is 'whether a
joint trial is so manifestly prejudicial that the trial judge is required to exercise his or her
discretion in only one way — by severing the trial. * * * A defendant must show clear,
manifest and undue prejudice and violation of a substantive right resulting from failure to
sever.'" Schiebel at 89, quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989).
{¶ 33} A defendant may establish prejudice sufficient to warrant severance "'when
evidence that the jury should not consider against a defendant and that would not be
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admissible if a defendant were tried alone is admitted against a codefendant.'" State v.
Walters, 10th Dist. Franklin No. 06AP-693, 2007-Ohio-5554, ¶ 25, quoting Zafiro v. United
States, 506 U.S. 534, 539, 113 S. Ct. 933 (1993). Defendants "are not entitled to severance
merely because they have a better chance of acquittal in separate trials." Zafiro at 540.
{¶ 34} Tucker argues that substantial evidence that was only relevant to Parker's
charges could have erroneously and prejudicially implicated him in the conspiracy.
Specifically, Tucker points to the evidence of Parker's financial distress, Parker's removal
of items from the home before the fire, Parker's continued gambling in Las Vegas after the
fire, and other evidence circumstantially implicating Parker in the arson. Tucker argues that
because it was undisputed that Parker was in Las Vegas at the time of the fire then jurors
may have concluded that the Tucker must have set the fire simply because he was the only
other codefendant who was available to accomplish the task.
{¶ 35} However, there is "no resulting prejudicial effect when the evidence of each
crime as alleged against each defendant is simple and distinct." State v. Wyche, 10th Dist.
Franklin No. No. 87AP-878, 1989 Ohio App. LEXIS 647, *9 (July 19, 1989). "In such cases,
the jury is capable of separating the proof required for each charge as to the individual
defendants." Id., citing State v. Roberts, 62 Ohio St. 2d 170, 175 (1980).
{¶ 36} The evidence related to Parker's motivation to commit arson and his
preparations for the arson are simple and distinct from the evidence related to Tucker's
involvement in the conspiracy and there is no indication in the record that the jurors would
have had any difficulty in separating the evidence as it related to each codefendant. And
because this was a conspiracy, much of the evidence inculpating Parker in the offense was
relevant and admissible against Tucker to establish the conspiracy.
{¶ 37} At oral argument, appellate counsel specifically argued the inadmissibility and
resulting prejudice from James Parker's testimony. Parker testified that Parker told him that
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he and an unidentified nephew had earlier set a fire for insurance reasons. This court
agrees that this testimony may not have been admissible in a stand-alone trial against
Tucker. However, this court does not find that the court plainly erred in failing to, sua sponte,
sever Tucker's trial following this testimony. As discussed in the prior assignment of error,
the jurors convicted Tucker on ample circumstantial evidence of his role in the arson. Given
the substantial evidence, this court cannot clearly find that jurors would have found Tucker
not guilty in a stand-alone trial that excluded this testimony.
{¶ 38} In addition, the court properly instructed the jury on the rules concerning the
consideration of separate evidence in a joint trial and this court presumes that jurors follow
the trial court's admonitions. State v. Loza, 71 Ohio St. 3d 61, 75 (1994). Tucker has
established neither error nor plain error. This court overrules Tucker's second assignment
of error.
{¶ 39} Assignment of Error No. 3:
{¶ 40} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN
IT ALLOWED THE STATE TO INTRODUCE DEMONSTRATIVE EVIDENCE.
{¶ 41} Tucker contends that the trial court abused its discretion in allowing the
admission of a demonstrative videotape that depicted the state's theory of how the arsonist
used a pry tool to break into the basement of Parker's home.
{¶ 42} At trial, Parker's daughter, Cheryl Sullivan, testified that she was at Parker's
home on December 27, 2015, helping Parker and Bertha prepare for their Las Vegas trip.
She recalled seeing that the cellar doors were closed and locked with a little "goldish" color
lock. However, when first responders arrived on scene, they found that the cellar doors
were open.
{¶ 43} Detective Fishwick testified that in his inspection of the cellar doors he noted
that the base of the original fastening mechanism was still attached to the door. However,
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it appeared to be missing an eyelet. Additionally, the hasp, i.e., the flat metal piece that fits
over the eyelet, which would then allow a padlock to secure the door, was missing.
Detectives searched the area and did not recover any of the missing hardware or the
padlock.
{¶ 44} Detective Fishwick further testified that it appeared that the base exhibited
evidence of tool marks. Based on these observations, Detective Fishwick opined that the
hasp lock was removed with a pry tool, such as a pry bar, to break the lock and open the
cellar doors.
{¶ 45} Detective Fishwick testified that the police subsequently removed the cellar
doors from the residence and kept them as evidence. Detectives then decided to attempt
to recreate the cellar door break-in. At a local hardware store, they purchased a pry bar
and a hasp lock, which consisted of a base, eyelet, and hasp. The base of the purchased
hasp lock appears similar, if not identical, to the original base on the cellar door.
{¶ 46} The detectives then removed the original base and installed the new hasp
lock through the original bolt holes. They secured the lock with a padlock, and a detective
used the pry bar to quickly break the lock, which was recorded on video.
{¶ 47} Over objection, the state was permitted to publish the 30-second video
demonstrating the state's theory on how the arsonist broke into 1310 Pater Avenue. Tucker
contends that the admission of the video was erroneous because that there was no
evidence indicating the presence of any pry tool or that the fastening mechanism or hasp
lock was substantially similar to what was originally on the cellar doors. This court reviews
the trial court's decision to admit or exclude under the abuse of discretion standard. State
v. Robb, 88 Ohio St. 3d 59, 69 (2000). This court has held that "demonstrative evidence is
admissible only if (1) it is relevant, (2) it is substantially similar to the object or occurrence
that it is intended to represent, and (3) it does not consume undue time, confuse the issues,
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or mislead the jury." State v. Hause, 12th Dist. Warren No. CA2008-05-063, 2009-Ohio-
548, ¶ 42.
{¶ 48} The trial court did not abuse its discretion in admitting the videotape. The
videotape was relevant. One of the issues raised by the defense was whether Tucker had
sufficient time to travel from Basinger's vehicle to 1310 Pater Avenue, break in, set the fire,
and return to the vehicle. The video demonstrated how quickly a fastening mechanism of
the type that may have been on the cellar door could be removed with a small, portable
tool, such as a pry tool.
{¶ 49} With respect to whether the purchased hasp lock was substantially similar,
the photograph of the original base hardware looks similar if not identical to the hardware
purchased by the police for the recreation. It is reasonable to assume that the missing hasp
and eyelet would be substantially similar to the replacement hardware.
{¶ 50} With regard to the tool used in the recreation, the state's theory was that the
perpetrator of the arson used a pry tool, as opposed to a cutting tool, based on the presence
of abrasions on the base hardware and the manner in which it was damaged. This is a
reasonable assumption based upon the facts known to the police.
{¶ 51} Finally, this court does not find that the demonstrative video would confuse
the issues or the mislead the jury. The testimony made clear that police did not have the
either the original hardware or the padlock and this piece of demonstrative evidence simply
explained the state's theory of how the arsonist entered the home, and the speed at which
such a break-in could be accomplished if it was planned. Even if the hardware and tool
used in the recreation did not exactly replicate how the arsonist entered the property, the
recreation was substantially similar to what may have occurred based on evidence in the
record. This court overrules Tucker's third assignment of error.
{¶ 52} Assignment of Error No. 4:
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{¶ 53} THE TRIAL COURT ERRED WHEN IT SUSTAINED THE STATE'S
OBJECTION TO LINDA ROSE TESTIFYING AS TO THE MEANING OF A TEXT
MESSAGE.
{¶ 54} Tucker argues that the court abused its discretion when it would not permit
Tucker's defense counsel to ask Linda Rose her opinion on the meaning of a Facebook
message she received from Tucker.
{¶ 55} Prior to trial, the state moved in limine for a ruling to exclude testimony from
Linda Rose as to what "job" Tucker was referring to when he sent her the Facebook
message, at 3:17 a.m. on December 28, 2015, stating "Babydoll. Done with the job. Got
to get some rest and call you tomorrow. Love you." The state anticipated that Linda Rose
would testify that she believed Tucker was referring to a roofing job and argued that her
opinion would be entirely speculative as she was not with Tucker that morning. The court
granted the motion. At trial, during Rose's cross-examination, Tucker's attorney called for
a sidebar to proffer her question to Rose as to what Rose thought the Facebook message
meant. The court again excluded the testimony based on its speculative nature.
{¶ 56} This court reviews the trial court's decision to admit or exclude evidence under
the abuse of discretion standard. Robb, 88 Ohio St. 3d at 68. Evid.R. 701 provides that "[i]f
the witness is not testifying as an expert, the 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." The first requirement of Evid.R. 701 is a restatement
of the firsthand knowledge rule, Evid.R. 602, which requires that a witness not testify to any
matter "unless evidence is introduced sufficient to support a finding that he has personal
knowledge of the matter." Evid.R. 602; State v. Kehoe, 133 Ohio App. 3d 591, 603 (12th
Dist.1999).
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{¶ 57} The trial court did not abuse its discretion. Linda Rose had knowledge that
Tucker worked as a roofer and could have had knowledge that he sometimes worked at
night. However, Linda Rose was not with Tucker that night and her opinion as to what he
meant by "job" would have been entirely speculative and not based on her perception or
personal knowledge. Accordingly, her opinion would not meet the requirements of Evid.R.
701.1 This court overrules Tucker's fourth assignment of error.
{¶ 58} Assignment of Error No. 5:
{¶ 59} THE STATE OF OHIO ENGAGED IN PROSECUTORIAL MISCONDUCT AT
TRIAL.
{¶ 60} Tucker argues that the state committed prosecutorial misconduct during
closing argument, which deprived him of a fair trial. To demonstrate that the state deprived
him of a fair trial, Tucker must establish that the prosecutor's remarks were improper and
prejudicially affected his substantial rights. State v. Elmore, 111 Ohio St. 3d 515, 2006-
Ohio-6207, ¶ 62. In making such a determination, the focus is upon the fairness of the trial,
not upon the culpability of the prosecutor. State v. Gray, 12th Dist. Butler No. CA2011-09-
176, 2012-Ohio-4769, ¶ 57. A finding of prosecutorial misconduct will not be grounds for
reversal unless the defendant can establish that he has been denied a fair trial because of
the prosecutor's actions. State v. Smith, 12th Dist. Warren No. CA2017-02-013, 2017-Ohio-
7540, ¶ 29.
{¶ 61} Tucker argues that state committed misconduct when the prosecutor stated
"so don't be misled by statements of attorneys telling you otherwise." Tucker argues that
the prosecutor was implying that defense counsel had been deceitful. Tucker's counsel
1. Moreover, this court notes that Linda Rose's anticipated testimony that Tucker was referring to a roofing
job would be inconsistent with Tucker's testimony that the "job" he ostensibly completed was buying
oxycodone tablets from Melissa Jones to sell in Hamilton.
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objected and the trial court sustained the objection, instructing jurors to disregard the
statement. This court does not find that the comment deprived Tucker of a fair trial. As
discussed above, the jury convicted Tucker on substantial evidence of his guilt. Moreover,
this court presumes that jurors followed the trial court's instructions to disregard the
comment. Loza, 71 Ohio St. 3d at 75.
{¶ 62} Next, Tucker argues that the state committed misconduct when the
prosecutor encouraged the jury to engage in "experiments" with regard to the passage of
time. The prosecutor encouraged jurors to "take out your watches" and allow 27 seconds
to elapse, which was the length of the call between Linda Rose's cellular phone and Parker's
cellular phone on the day before the fire. The prosecutor argued that this would
demonstrate that 27 seconds was sufficient time for Tucker and Parker to confirm that they
were proceeding with the arson plan.
{¶ 63} Later, the state recommended that the jurors "take out a stopwatch and have
an 11-minute moment of silence," i.e., the time that Basinger's phone remained stationary
while she was parked on Grand Boulevard. Tucker objected, and the court indicated that it
did not want the prosecutor encouraging jurors to count the passage of time, off the record,
and during deliberations. Instead, the court permitted the prosecutor to make his point by
holding a five-minute moment of silence during closing argument.
{¶ 64} Jurors are obligated to decide a case based only upon the evidence and
arguments presented during the trial. State v. Villarreal, 12th Dist. Butler No. CA2004-02-
035, 2005-Ohio-1924, ¶ 37, citing State v. Taylor, 73 Ohio App. 3d 827, 831 (4th Dist.1991).
It is therefore misconduct for a juror to engage in any independent inquiry or
experimentation concerning the matter at trial. Taylor at 831. Juror misconduct is only
grounds for reversal if it results in prejudice to the defendant. Id., citing Armleder v.
Lieberman, 33 Ohio St. 77 (1877).
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{¶ 65} This court does not find that juror misconduct occurred or that the prosecutor
encouraged juror misconduct. Juror misconduct cases involving experimentation typically
involve a juror using extraneous tools, procedures, or methods to test a hypothesis, outside
of jury deliberations. See, e.g., State v. Doan, 1st Dist. Hamilton No. C-940330, 1995 Ohio
App. LEXIS 4395 (juror conducted lighting experiment by putting lipstick on her arm to
simulate a bruise and tried to see it in a darkened room); State v. Hubbard, 8th Dist.
Cuyahoga No. 92033, 2009-Ohio-5817 (juror used binoculars to determine how much she
could observe from 50 feet away).
{¶ 66} Out-of-court experimentation by a juror is improper for various reasons,
including that the variables that might affect the outcome are not known or controlled by the
court or parties and could differ from the facts in evidence. However, the passage of time
is a constant and is also a common experience of everyday life. Therefore, the risks
inherent in jurors conducting experiments are not present when asking jurors to consider
the passage of time as it relates to the theory of the case. This court overrules Tucker's
fifth assignment of error.
{¶ 67} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
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