State v. Hunter , 2016 Ohio 123 ( 2016 )

[Cite as State v. Hunter, 2016-Ohio-123.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-140684
C-140704
Plaintiff-Appellee, : C-140717
TRIAL NOS. B-1400110
vs. : B-1400199
TRACIE M. HUNTER, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 15, 2016
Mark R. Meterko, Karl H. Schneider, R. Scott Croswell, III, and Merlyn D.
Shiverdecker, Special Prosecuting Attorneys, for Plaintiff-Appellee,
Ohio Justice & Policy Center and David A. Singleton, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
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M OCK , Judge.
{¶1} In three assignments of error, defendant-appellant Tracie M. Hunter
appeals the decision of the trial court convicting her of one count of having an
unlawful interest in a public contract. We affirm.
Factual Background
{¶2} In 2010, Hunter ran for a judgeship in the Hamilton County Juvenile
Court. Following litigation over the counting of provisional ballots, she was
determined to have won the election and was sworn in on May 25, 2012.
{¶3} Over time, employees in the prosecutor’s office noticed what they
believed to be a pattern of Hunter backdating certain entries. These employees
suspected that Hunter was backdating the documents with the specific intention of
depriving their office of the ability to timely appeal the decisions. After an internal
investigation concluded, the Hamilton County prosecuting attorney asked the
common pleas court to appoint special prosecutors to investigate the activity. The
common pleas court appointed two special prosecutors, who conducted their own
investigation and eventually convened a special grand jury to assist them. At the
conclusion of its investigation, the grand jury indicted Hunter on nine counts
involving several alleged instances of illegal conduct while in office.
The Termination Proceedings against Steven Hunter
{¶4} The sixth count of the indictment alleged that Hunter had an unlawful
interest in a public contract, in violation of R.C. 2921.42(A)(1). According to the
testimony presented during trial, the charge stemmed from the termination proceedings
against Steven Hunter, an employee of the Hamilton County Juvenile Court’s Youth
Center (“Youth Center”) and Hunter’s brother.
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{¶5} Steven Hunter was employed as a juvenile corrections officer. On July 7,
2013, Steven Hunter was involved in an incident in which he was alleged to have hit a
youth in the intake department of the detention center. As a result of that incident,
Dwayne Bowman, the superintendent of the Youth Center, recommended that the court
terminate Steven Hunter and that a hearing be scheduled for that purpose.
{¶6} Steven Hunter was informed of the decision on July 25, 2013. Shortly
after 10:30 that evening, Hunter sent an email to all employees of the Youth Center in
which she identified a number of safety concerns, which she said had been brought to
her attention as a result of an email she had sent out previously. She said that she would
schedule a closed meeting to discuss the issues with the corrections officers.
{¶7} Bowman testified that the email was troubling. He said that he was
concerned that the email “would cause confusion with the staff at the youth center. Mr.
Hunter’s termination process was still occurring and I believe that it could jeopardize
that process.” Bowman noted that many of the items on Hunter’s list echoed the main
explanations that Steven Hunter had given for his actions during the July 7 incident,
suggesting that the email was Hunter’s way of inserting herself into the proceedings.
Brian Bell, assistant superintendent of the Youth Center, had similar concerns, testifying
that he felt that “she was going to speak to the residents about it to conduct basically her
own investigation.”
{¶8} On July 29, 2013, Hunter sent an email to Bowman in which she
requested that he send her a number of documents. The email demanded
copies of all incident reports related to [the youth] and any and all JCOs
involving [the youth] and other staff, prior or subsequent to alleged
incident with JCO Hunter. All incidents reported during any time frame
that [the youth] was detained at the Youth Center, shall be included.
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Please provide copies of all drug tests performed of [the youth]
during all times at Youth Center. Medical reports of any positive drug
tests shall also be included, including the substances detected.
Please forward all copies of all incidents reported involving [the
youth] with police.
{¶9} Bowman replied by asking Hunter if she wanted only the incident
reports, or if she also wanted “other documents related to our investigation.” Bowman
testified that he had asked that clarifying question because Hunter was requesting
documentation that was “above and beyond the information that we would normally
provide to someone not directly involved in the investigation or someone from the
investigative team.” He was concerned at that point and was “trying to protect the
integrity of the disciplinary process, of the investigation, * * * and also to give the judge
the opportunity to clarify that she was not asking for that kind of information, but just
the information of the incident.” Rather than restraining her query, Hunter replied that
she wanted “all documentation of every incident and every employee pertaining to [the
youth] during his stay at the Youth Center * * *.”
{¶10} Bowman testified that this exchange was very stressful for him. He said
that he was greatly concerned because “[i]t was something that I had not experienced
before for a judge to be directly involved in an incident there at the Youth Center.
Certainly the fact that this was the brother of the judge.” Likewise, Bell testified that he
had never seen a judge directly involved in the disciplinary process of a Youth Center
employee. According to Bell, the types of documents provided to Hunter would not have
been provided to an employee under any circumstances.
{¶11} Bowman provided the documents to Hunter that day. Steven Hunter
testified that Hunter then provided the documents to him, which he in turn brought to
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his attorney that evening. His attorney testified that she only accepted some of the
documents. His attorney testified that she refused to accept some of the documents
because it would have been “unethical” for her to take them and that she was “concerned
that [she] might have to make an ethical report to the Supreme Court about the person
that gave him” the documents.
{¶12} The next morning, Steven Hunter appeared with his attorney for the
hearing. Bell testified that, under normal circumstances, the first hearing is continued
because the employee receives his discovery packet at the first hearing and usually
requires time to review the documents. Steven Hunter’s counsel was able to proceed
with the hearing that day, which concluded after several hours. Steven Hunter was
eventually terminated.
The Trial and Verdict Return
{¶13} After Hunter’s indictment, the case proceeded to a lengthy jury trial.
After five weeks of testimony, the jury received the case. Jury deliberations began the
afternoon of Wednesday, October 8, 2014. On Friday at 4 p.m., the jurors said that they
had reached a verdict on Count 6, but were unable to reach a verdict on the other counts.
The foreperson gave the completed verdict form to the trial court. In open court, the
trial court reviewed the document and ordered the jury to be polled as to whether the
verdict was theirs. Each member of the jury answered affirmatively without
equivocation. The trial court then said:
I’m going to - - I have indicated that this verdict will be in. We are not
indicating what the verdict is, but this verdict will be entered. And I’m
going to hand this verdict to the court reporter, Mr. Blum, and I’m going
to ask him if he would seal this verdict.
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Defense counsel entered no objection to the procedure employed by the trial court. The
jury then received the Howard charge—a supplemental instruction for the court to give
a deadlocked jury designed to encourage the jurors to reach a verdict. See State v.
Howard, 42 Ohio St. 3d 18, 537 N.E.2d 188 (1989). The trial court dismissed the jury for
the holiday weekend.
{¶14} The jury returned Tuesday morning and resumed deliberations. Shortly
after noon, the jury returned to the courtroom and the foreperson informed the trial
court that the jurors could not reach a verdict on the remaining counts. Once the trial
court was satisfied that further deliberation would be fruitless, the clerk read the verdict
for Count 6 in open court. After the trial court thanked the jury for its service, but before
the jurors were excused, counsel for Hunter asked that the jury be polled as to Count 6.
THE COURT: The jury has already been polled. They were previously
polled and that’s it. They were polled. They were polled.
MR. BENNETT: I thought until the verdict was published.
THE COURT: They were polled and they were asked whether Count 6
was their true verdict and they indicated yes and so it’s over. I indicated
that.
{¶15} The matter was continued to allow for a presentence investigation, after
which Hunter was placed on community control for one year, and was ordered to serve
180 days in the Hamilton County Justice Center. Hunter’s sentence has been stayed
pending this appeal.
The Acquittal Motion was Properly Denied
{¶16} In her first assignment of error, Hunter claims that the trial court
erred when it denied her motion for an acquittal. The standard of review for the
denial of a Crim.R. 29 motion for an acquittal is identical to the standard of review
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for a sufficiency-of-the-evidence claim. We examine the evidence admitted at trial in
the light most favorable to the state. We then determine whether that evidence could
have convinced a rational trier of fact that the essential elements of the crime had
been proved beyond a reasonable doubt. See State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. It is a test of adequacy, and
whether the evidence is sufficient to sustain the judgment is a question of law.
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11.
{¶17} R.C. 2921.42(A)(1) states that “[n]o public official shall knowingly * *
* employ the authority or influence of the public official’s office to secure
authorization of any public contract in which * * * a member of the public official’s
family * * * has an interest.” A “public contract” is defined to include “the purchase
or acquisition, or a contract for the purchase or acquisition, of property or services *
* * including the employment of an individual by the state, any of its political
subdivisions, or any agency or instrumentality of either.” R.C. 2921.42(I)(1).
{¶18} Hunter first argues that since the statute speaks of securing
authorization, it would only criminalize interference in the initial hiring of a family
member—interference in a termination proceeding would not be covered. But
“securing” has meanings in addition to those relating to an initial acquisition.
According to Black’s Law Dictionary, the word “secure” can also relate to preventing
exposure to danger, to make safe, or to make “so strong, stable, or firm as to insure
safety and financial security.” Black’s Law Dictionary 942 (Abridged 6th Ed.1991).
Thus, the statute encompasses not just the initial acquisition of employment, but also
any subsequent conduct designed to protect the employee’s position.
{¶19} Our reading of the statute comports with the position of the Ohio
Ethics Commission on the matter. See State v. Urbin, 100 Ohio St. 3d 1207, 2003-
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Ohio-5549, 797 N.E.2d 985, ¶ 4 (Moyer, C.J., concurring) (it is appropriate to consider
opinions from the Ohio Ethics Commission when interpreting the scope of R.C.
2921.42). In 1992, that body concluded that the statute “extends beyond the initial
hiring of the family member and prohibits a public official from participating in any
matter or decision which would affect the continuation, implementation, or terms
and conditions of an individual contract of employment for a member of his family.”
See 1992 Ohio Ethics Commission Op. No. 92-012.
{¶20} Limiting the applicability of R.C. 2921.42(A)(1) would inappropriately
and drastically constrain the statute’s scope and would fail to curtail a majority of the
abuse the General Assembly intended to prevent. As the Ohio Ethics Commission
noted,
[i]f it were held that the prohibitions imposed by R.C. 2921.42(A)(1)
applied only to authorizing or securing a family member's initial
employment, then the prohibitions could be effectively circumvented
where a public official did not participate in the initial hiring decision,
but subsequent to the initial employment he authorized or approved
payments to a family member for services rendered, or advocated,
recommended, voted upon, or participated in discussions or decision-
making regarding such matters as pay raises, additional benefits, or
other modifications of the public employment.
1992 Ohio Ethics Commission Op. No. 92-012.
{¶21} Therefore, we hold that a violation of R.C. 2921.42(A)(1) includes not
only interference with the initial decision to employ a family member, but also extends
to other areas of employment, including termination proceedings.
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{¶22} Hunter next argues that the record does not support her conviction. We
disagree. Both Bowman and Bell testified that they perceived Hunter’s conduct as her
attempting to interfere with the disciplinary process and her brother’s termination.
Bowman provided the documents to Hunter, and her delivery of the documents to her
brother concluded the matter. While Hunter argues that the state failed to meet its
burden of proof because it did not demonstrate which documents were actually
provided, we find that a jury could reasonably infer that the documents were ones to
which Steven Hunter was not entitled based on the testimony of Bowman and Bell and
how Steven Hunter’s attorney treated them.
{¶23} Hunter further argues that she could not be convicted because her
brother was actually fired. Thus, her intercession was without fruit and no interference
occurred. But, on this record, we conclude that the crime was complete, at the latest,
when she delivered the documents to her brother. At that moment, she had used her
authority or the influence of her office to secure her brother’s continued employment.
For our purposes, the outcome of the proceeding was immaterial.
{¶24} For these reasons, the trial court properly denied Hunter’s motion for an
acquittal, and we overrule her first assignment of error.
Jury Polling Not Plain Error
{¶25} In her second assignment of error, Hunter claims that the trial court
erred when it failed to poll the jury at the conclusion of the case. Because Hunter failed
to object when the trial court polled the jury after it received the verdict for Count 6, we
will only reverse if the procedure below amounted to plain error. To notice plain error,
we must first find that an error occurred, that the error was an obvious defect in the trial
proceedings, and that the error affected the outcome of the trial. State v. Payne, 114
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Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16; State v. Eafford, 132 Ohio St. 3d
159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11.
{¶26} On the record before us, we cannot conclude that the decision to poll the
jury prior to publication of the verdict was plain error. The Revised Code states that
“[b]efore the verdict is accepted, the jury may be polled at the request of either the
prosecuting attorney or the defendant.” R.C. 2945.77. Similarly, Crim.R. 31(D) states
that “[w]hen a verdict is returned and before it is accepted the jury shall be polled at the
request of any party or upon the court's own motion.” Neither the statute nor the rule
requires that the jury verdict be read in open court prior to polling the jury.
{¶27} In support of her position, Hunter quotes a line from a 2003 decision of
the Ohio Supreme Court, which says that “[a] verdict is final if (1) the deliberations are
over, (2) the result is announced in open court, and (3) the jury is polled and no dissent
is registered.” See State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4396, 794 N.E.2d
27, ¶ 34, quoting United States v. White, 972 F.2d 590, 595 (5th Cir.1992). But Williams
does not support Hunter’s position.
{¶28} In Williams, the court addressed the question of whether a juror could
recant his or her verdict at any time before it is journalized. Williams was a death-
penalty case in which a juror had asked to recant her verdict on one of the counts after
the guilt phase of the trial had concluded but before the penalty phase had begun. The
Williams court began its analysis by stating that “[n]umerous cases hold that the verdict
becomes final once the jury has been polled and each juror has assented to the verdict in
open court.” Williams at ¶ 34. The Williams court then quoted the White language cited
by Hunter.
{¶29} The language cited as it relates to the requirement of publication prior to
finality is dicta. It was not necessary to the court’s analysis. And it is not found in the
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syllabus of Williams, which simply states that “[o]nce a poll of the jurors has been
completed and all have assented to the verdict, a juror may not thereafter rescind or
modify his or her vote.” Id. at syllabus. Additionally, the Williams court cited another
federal appellate decision, which stated that “[a] verdict becomes immutable by the jury
once announced in open court, or when it has been confirmed by a poll, if ordered.” Id.
at ¶ 35, quoting United States v. Dakins, 872 F.2d 1061, 1065 (D.C.Cir.1989).
{¶30} There is no reading of the rule or statute that requires that the jury be
polled only after the verdict is announced in open court. In fact, the Eighth Appellate
District has held that polling the jury before reading the verdict does not run afoul of
Crim.R. 31(D), because the rule only requires the court to poll the jury for unanimity
before accepting the verdict. State v. Bradley, 8th Dist. Cuyahoga No. 79354, 2002-
Ohio-3895, ¶ 66.
{¶31} The Ohio Supreme Court has previously addressed the role of the jury
poll. In 2000, the court stated
[a] jury poll’s purpose is to “give each juror an opportunity, before the
verdict is recorded, to declare in open court his assent to the verdict
which the foreman has returned and thus to enable the court and the
parties to ascertain with certainty that a unanimous verdict has in fact
been reached and that no juror has been coerced or induced to agree to a
verdict to which he has not fully assented.”
State v. Hessler, 90 Ohio St. 3d 108, 121, 734 N.E.2d 1237 (2000), quoting Miranda v.
United States, 255 F.2d 9, 17 (1st Cir.1958). The Williams court concluded that:
the jury poll is well suited to serve as the benchmark of finality. The poll is
a solemn ceremony whose formality signals the conclusive nature of the
verdict to all who are present. The poll focuses each juror's attention on
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the verdict and gives each a clear-cut opportunity to declare in open court
her assent to or dissent from the [verdict].
Williams at ¶ 36.
{¶32} The procedure followed by the trial court did not violate any provision of
Crim.R. 31(D) or R.C. 2945.77, and its use did not run afoul of the Ohio Supreme Court’s
view on the role and import of the jury poll. Therefore, the trial court did not commit
plain error when it polled the jury prior to publication of the verdict. We overrule
Hunter’s second assignment of error.
No Actionable Prosecutorial Misconduct
{¶33} In her third assignment of error, Hunter claims that numerous instances
of prosecutorial misconduct occurred during the state’s closing argument that deprived
her of a fair trial. We disagree.
{¶34} Generally, prosecutorial misconduct will not provide a basis for
overturning a criminal conviction, unless, on the record as a whole, the misconduct can
be said to have deprived the appellant of a fair trial. State v. Lott, 51 Ohio St. 3d 160, 166,
555 N.E.2d 293 (1990). “The touchtone of analysis ‘is the fairness of the trial, not the
culpability of the prosecutor.’ ” State v. Hanna, 95 Ohio St. 3d 285, 2002-Ohio-2221,
767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71
L. Ed. 2d 78 (1982). The test is whether the remarks were improper and, if so, whether
they prejudicially affected substantial rights of the defendant. State v. Smith, 14 Ohio
St.3d 13, 14, 470 N.E.2d 883 (1984).
{¶35} A prosecuting attorney has wide latitude to summarize the evidence and
zealously advocate the state's position during closing argument. See State v. Richey, 64
Ohio St. 3d 353, 362, 595 N.E.2d 915 (1992). The propriety of a specific remark by a
prosecutor must not be judged in isolation, but in light of the tenor and context of the
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entire closing argument. See State v. Slagle, 65 Ohio St. 3d 597, 607, 605 N.E.2d 916
(1992). In almost all of the instances cited by Hunter, there was no objection. She,
therefore, has waived all but plain error. See State v. D'Ambrosio, 73 Ohio St. 3d 141,
143-144, 652 N.E.2d 710 (1995).
{¶36} We have reviewed Hunter’s argument, and the chart of 51 specific
instances of alleged improper comment, from the perspective of not just the lengthy
closing arguments presented by both sides, but also in light of the lengthy trial that
preceded them. In many of the instances, Hunter’s counsel opened the door to
comments made by the state in rebuttal with his own closing remarks. See State v. Diar,
120 Ohio St. 3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 145. Further, the trial court
repeatedly admonished the jury that closing arguments are not evidence. See State v.
Simmons, 1st Dist. Hamilton No. C-130126, 2014-Ohio-3695, ¶ 77 (reversal for
questionable comments after lengthy trial not necessary because the jury was advised
that the arguments are not evidence).
{¶37} The trial in this case was long and intense. The closing arguments of
both sides were equally intense. And while some of the comments may have stretched
the bounds of what is acceptable in closing arguments, the record does not support the
conclusion that the arguments of the state deprived Hunter of a fair trial. Hunter’s third
assignment of error is overruled.
Conclusion
{¶38} Hunter’s conviction for having an unlawful interest in a public contract
was based on sufficient evidence; therefore the trial court properly denied her motion for
an acquittal. Further, the trial court did not commit plain error when it polled the jury
after receiving the verdict for having an unlawful interest in a public contract but before
it was publicized. And the state’s comments during rebuttal closing argument did not
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deprive Hunter of a fair trial. Having considered and overruled all three assignments of
error, we affirm the judgment of the trial court.
Judgment affirmed.
DEWINE, P.J., and STAUTBERG, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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