State v. Stephenson , 2013 Ohio 771 ( 2013 )

[Cite as State v. Stephenson, 2013-Ohio-771.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA936
:
vs. :
: DECISION AND JUDGMENT
ELMER E. STEPHENSON, : ENTRY
:
Defendant-Appellant. : Released: 02/26/13
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Valerie Kunze, Assistant
State Public Defender, Columbus, Ohio, for Appellant.
C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant
Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Appellant, Elmer Stephenson, appeals the judgment of the
Adams County Court of Common Pleas. Appellant was convicted of gross
sexual imposition, in violation of R.C. 2907.05(A)(1), a fourth degree
felony. Appellant contends the trial court erred by: (1) deviating from the
language of the Howard charge when it gave the instruction to the
deadlocked jury; and, (2) by providing a definition of “knowingly” that did
not comport with Ohio law. Upon review, we find no plain error occurred
when the trial court modified the language of the Howard charge it gave to
Adams App. No. 12CA936 2
the jury and further, no plain error occurred by the trial court’s inclusion of
the definition of “knowingly” in the jury instructions. As such, we overrule
both assignments of error and affirm the judgment of the trial court.
FACTS
{¶2} On July 7, 2011, Appellant Elmer Stephenson was indicted by
the Adams County Grand Jury on two counts of gross sexual imposition and
one count of kidnapping, based on allegations made by Chasity Morrison. At
the time of the alleged incident, Appellant was 68 years old and used
oxygen. Ms. Morrison was his home health care aide, age 26. She assisted
Appellant by cleaning and running errands.
{¶3} The indictment stemmed from an incident Ms. Morrison reported
to the West Union Police. Morrison alleged in early 2011, while she was
doing dishes at the kitchen sink in Appellant’s home, he came up behind her
and put his hands inside her clothes. The State of Ohio presented three
witnesses: Sgt. Don Adams of the Adams County Sheriff’s Department,
Kenneth Dick, an investigator with the Adams County Prosecutor’s Office,
and Ms. Morrison. Ms. Morrison testified that when he put his hands inside
her clothes, he touched her “right beside her vagina,” and also “underneath
her bra line.” She further testified she “tried to leave” but was successful
only when Appellant “just stopped.” Appellant declined to testify at trial.
Adams App. No. 12CA936 3
{¶4} The jury began deliberating at 3:00 p.m. on the second day of
trial. At 3:40 p.m., the jury inquired: “Why are there two sexual imposition
charges? And then it’s got one for the charge of sexual contact of the pubic
region? One for the charge of sexual contact of the breast region?
Clarification please.” All parties agreed to the court’s written response,
which was “Yes.” At 5:51 p.m., the jury inquired “What happens if all 12
jurors cannot come to agreement on all three counts?” The court brought the
jury back to the courtroom and engaged in dialogue with them about their
inability to reach a unanimous decision and possible recess for the day. The
jury returned to deliberations.
{¶5} At 8:00 p.m., the jury submitted a note indicating that they were
unable to reach a unanimous verdict and believed “as a whole that a
unanimous decision will not be made at any time.” The court then issued a
Howard charge and released the jury. The jury returned the next day at
10:00 a.m. and the court gave them a second Howard charge with additional
instructions. At 2:30 p.m., the jury returned a verdict of guilty on count one,
gross sexual imposition, and not guilty on the remaining counts. This appeal
followed.
ASSIGNMENTS OF ERROR
I. “THE TRIAL COURT ERRED IN ITS DEVIATION FROM THE
HOWARD CHARGE WHEN IT GAVE INSTRUCTION TO THE
Adams App. No. 12CA936 4
DEADLOCKED JURY AND THEREBY DEPRIVED MR.
STEPHENSON OF HIS RIGHT TO A FAIR TRIAL BEFORE A
PROPERLY INSTRUCTED JURY, AND OF HIS RIGHT TO DUE
PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND BY SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.”
II. “THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE
JURY BY INEXPLICABLY PROVIDING THE DEFINITION OF
KNOWINGLY, AND THEREBY DEPRIVED MR. STEPHENSON
OF HIS RIGHT TO A FAIR TRIAL BEFORE A PROBPERLY
INSTRUCTED JURY, AND OF HIS RIGHT TO DUE PROCESS
OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION.”
LEGAL ANALYSIS
The Howard Charge
{¶6} In his first assignment of error, Appellant contends that the trial
court erred in its deviation from the Howard charge when it failed to use,
verbatim, the language approved in State v. Howard, 42 Ohio St. 3d 18, 537
N.E.2d 188 (1989). In support of his argument, Appellant cites State v.
Andricks, 111 Ohio App. 3d 93, 675 N.E.2d 872 (3rd. Dist. 1996). In
Andricks, the appellate court held that the cumulative effect of errors in the
giving of an altered Howard instruction could not help but confuse and
mislead the jury. Thus, the discrepancies in language rose to the level of
plain error. The appellate court further held that there would seem to be no
Adams App. No. 12CA936 5
good reason for the trial court to deviate from the verbatim syllabus
language provided in Howard.
{¶7} Here, similar to the circumstances in Andricks, the transcript
reveals that Appellant did not object to the court’s altered Howard
instruction when it was given at the end of the second day of trial, although
he was twice given the opportunity on that date to do so. The transcript also
reveals that Appellant did not object to the giving of the altered Howard
charge when he was given yet a third opportunity to do so on the morning of
the third day of trial. The failure to object to a jury instruction waives any
claim of error relative to that instruction, unless, but for the error, the
outcome of the trial clearly would have been otherwise. State v. Barrett, 4th
Dist. No. 03CA2889, 2004-Ohio-2064, 2004 WL 878002, ¶21. See, e.g.,
State v. Nolling, 98 Ohio St. 3d 44, 781 N.E.2d 88 (2002).
{¶8} Notice of plain error under Crim.R.52 (B) is to be taken with the
utmost of caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice. Barrett, ¶21. See, e.g. State v. Barnes, 94
Ohio St. 3d 21, 27 759 N.E.2d 1240 (2002); State v. Hill, 92 Ohio St. 3d 191,
196, 749 N.E.2d 274 (2001). Plain error should not be invoked unless it can
be said that, but for the error, the outcome of the trial would clearly have
been otherwise. See, e.g., State v. Jackson, 92 Ohio St. 3d 436, 438, 751
Adams App. No. 12CA936 6
N.E.2d 946 (2001); State v. Sanders, 92 Ohio St. 3d 245, 750 N.E.2d 90
(2001). However, unlike the appellate court in Andricks, we do not believe
that the circumstances in the case at bar merit a finding of plain error.
{¶9} In State v. Howard, the Supreme Court of Ohio approved the
following supplemental instruction for those cases in which a jury indicates
to the trial judge that they are unable to reach a unanimous verdict and are
considered to be deadlocked:
“The principal mode, provided by our Constitution and laws, for
deciding questions of fact in criminal cases, is by jury verdict. In a
large proportion of cases, absolute certainty cannot be attained or
expected. Although the verdict must reflect the verdict of each
individual juror and not mere acquiescence in the conclusion of your
fellows, each questions submitted to you should be examined with
proper regard and deference to the opinions of others. You should
consider it desirable that the case be decided. You are selected in the
same manner, and from the same source, as any future jury would be.
There is no reason to believe the case will ever be submitted to a jury
more capable, impartial, or intelligent than this one. Likewise, there
is no reason to believe that more or clearer evidence will be produced
by either side. It is your duty to decide the case, if you can
conscientiously do so. You should listen to one another’s arguments
with a disposition to be persuaded. Do not hesitate to reexamine your
views and change your position if you are convinced it is erroneous.
If there is disagreement, all * * *jurors should reexamine their
positions, given that a unanimous verdict has not been reached. Jurors
for acquittal should consider whether their doubt is reasonable,
considering that it is not shared by others, equally honest, who have
heard the same evidence, with the same desire to arrive at the truth,
and under the same oath. Likewise, jurors for conviction should ask
themselves whether they might not reasonably doubt the correctness
of a judgment not concurred in by all other jurors.”
Adams App. No. 12CA936 7
{¶10} We have readily acknowledged that the better practice is to give
the precise Howard instruction as approved by the Supreme Court of Ohio.
Barrett, ¶29. See, e.g., State v. Lopez, 90 Ohio App. 3d 566, 582, 630
N.E.2d 32 (1993). See, e.g., State v. Clifton, 172 Ohio App. 3d 286, 2007-
Ohio-3392, 872 N.E.2d 1310, ¶31. However, as aptly noted by the Eighth
District Court of Appeals, the Howard charge is not an absolute mandate for
trial courts to follow, but rather a suggestion. Id. See, e.g., State v. Williams,
8th Dist. No. 66864, 1995 WL 396369 (Jul.5, 1995). If a court deviates
from the Howard language, the court must ensure that the charge satisfies
the concerns of the Howard opinion. Barrett, ¶29. In particular, a court must
ensure that the instruction (1) encourages a unanimous verdict only when
one can conscientiously be reached, leaving open the possibility of a hung
jury and resulting mistrial, and (2) calls for all jurors to reevaluate their
opinions, not just the minority members. Id; also see State v. Matyas, 7th
Dist. No. 98-JE-14, 2000-Ohio-267, 2001 WL 1808575 (Dec. 6, 2000).
{¶11} Appellant takes issue with the modified language of the
Howard charge at several places in the transcript. We will compare the
passages with which Appellant takes issue,1 keeping in mind the two
principle concerns of the Howard opinion.
1
To clearly illustrate the differences between the verbatim Howard language and the altered Howard
charge given to the jury in these proceedings, the variations in word choice have been italicized.
Adams App. No. 12CA936 8
(1) The precise Howard charge begins:
The principal mode, provided by our Constitution and laws, for
deciding questions of fact in criminal cases, is by jury verdict.
By contrast, the trial court here stated:
Now, returning to that which we commenced with this trial
before you were actually sworn in. Those who participate in a trial
must do so in accordance with established rules. That is true of the
witnesses, the lawyers, and the Judge. Ladies and gentlemen of the
jury, this is not particularly unusual your concern with inability to
reach a unanimous verdict. But, there is precedence as to how a
court and or counsel must address these instances, and that is the next
aspect of this.
{¶12} While we agree the trial court exchanged the standard
introductory sentence for a generalized statement about duties and
established rules, we do not necessarily agree that the difference in language
could only be interpreted by the jury as meaning that a jury verdict was
being required of them. Individual jurors may well have interpreted the
court’s language about “established rules” as hearkening back to previous
admonitions they had been given throughout the proceedings. For example,
during the trial, the judge had reminded the jurors that they were not to
discuss the case with family or friends, not to express opinions, not to read
the local newspaper, not to consider opening statements as evidence, and not
to expect they would be allowed to keep their cell phones during
deliberations. We conclude that this aspect of the altered Howard charge did
Adams App. No. 12CA936 9
not cause confusion such that it foreclosed the possibility of a hung jury or
place undue pressure on minority members of the jury.
2) On the deliberative process and interaction among jurors, the
Howard charge reads:
In a large proportion of cases, absolute certainty cannot be
attained or expected. Although the verdict must reflect the verdict of
each individual juror and not mere acquiescence in the conclusion of
your fellows, each question submitted to you should be examined with
proper regard and deference to the opinions of others. You should
consider it desirable that the case be decided. You are selected in the
same manner and from the same source, as any future jury would be.
There is no reason to believe the case will ever be submitted to a jury
more capable, impartial, or intelligent than this one. Likewise, there
is no reason to believe that more or clearer evidence will be produced
by either side. It is your duty to decide the case, if you can
conscientiously do so. You should listen to one another’s arguments
with a disposition to be persuaded. Do not hesitate to reexamine your
views and change your position if you are convinced it is erroneous.
If there is disagreement, all jurors should reexamine their positions,
given that a unanimous verdict has not been reached.
By contrast, the trial court here stated:
In a large proportion of cases, absolute certainty cannot be
attained or expected. Although the verdict must reflect the verdict of
each individual juror and not mere consent to the conclusion of other
jurors, each question submitted to you should be examined with
proper regard and deference to the opinions of other jurors. You
should consider it desirable that the case be decided. You were
selected in the same manner and from the same source as any future
jury would be. There is no reason for this Court to believe that the
case will ever be submitted to a jury more capable, impartial, or
intelligent than this one. Likewise, there is no reason to believe that
more or clear evidence will be produced by either side. It is your duty
to decide this case if you can honestly do so. You should listen to one
another’s arguments with a disposition to be persuaded. Do not
Adams App. No. 12CA936 10
hesitate to reexamine your views and change your position if you are
convinced that it is wrong. As there is disagreement, all jurors should
reexamine their positions, given that a verdict has not been reached.
{¶13} Appellant argues that the word and phrasal choices utilized by
the trial court in place of verbatim Howard language issued a stronger
directive implying that the jury “must reach a verdict.” We disagree. We
do not find that the words and phrases substituted by the trial judge varied
significantly from the verbatim Howard language. 2 We also do not find that
the substituted word choices or omission of the word “unanimous” in the
phrase “given that a verdict has not been reached,” created a coercive effect
on the jury. After review, we conclude that the language utilized by the trial
judge complied with Howard.
3) Regarding specific instructions addressed to jurors for acquittal
and jurors for conviction, the Howard charge states:
Jurors for acquittal should consider whether their doubt is
reasonable, considering that it is not shared by others, equally honest,
who have heard the same evidence, with the same desire to arrive at
the truth, and under the same oath. Likewise, jurors for conviction
2
For example, the trial court substituted “consent,” “other jurors,” “honestly,” and “wrong” for the words
“acquiescence, “ “your fellows,” “conscientiously,” and “erroneous.” According to Merriam Webster’s
Online Dictionary, http://www.meriam-webster.com/dictionary (accessed August 28, 2012), “consent” is a
synonym for “acquiescence.” “Honest” is a synonym for “conscientious,” and “wrong” is a synonym for
“erroneous.” Also, according to the online source, “fellow” is defined as “a member of a group having
common characteristics, “i.e. “other jurors.”
Adams App. No. 12CA936 11
should ask themselves whether they might not reasonably doubt the
correctness of a judgment not concurred in by all other jurors.
By contrast, the trial court here substituted language as follows:
Jurors more in favor of plaintiff should consider whether their
position is correct, considering that it is not shared by others equally
honest who have heard the same evidence with the same desire to
arrive at the truth and under the same oath. Likewise, jurors more in
favor of defendant should ask themselves whether their position is
correct considering that it is not shared by other jurors.
{¶14} Appellant argues that the altered language shifted the jury’s
discussion from determining whether he was guilty beyond a reasonable
doubt to a discussion of which “side” was correct- plaintiff or defendant.
Although it is preferable to have left the language as to “reasonable doubt”
in the charge, we disagree that the trial court’s substitution in wording went
as far as to shift or eradicate the burden on the State to provide evidence
beyond a reasonable doubt on each element of each charge. The trial court
properly instructed the jury prior to their retiring for deliberations.
Specifically, the court instructed that Appellant was presumed innocent until
his guilt was established beyond a reasonable doubt. The trial court
instructed that the State must produce evidence beyond a reasonable doubt
Adams App. No. 12CA936 12
as to every essential element of the offenses charged. The trial judge further
instructed that reasonable doubt is not mere possible doubt. The substance of
the section of which Appellant complains, despite changing the language to
“more in favor of plaintiff” and “more in favor of defendant,” continues to
focus on the fact that all jurors, those for acquittal and those for conviction,
should reconsider their positions. Again, the trial court’s changes in
language did not place undue pressure or coercion on the minority jurors but
asked all jurors to reconsider their positions.
{¶15} Finally, Appellant argues that the trial court, after issuing the
Howard charge a second time, added a further instruction over defense’s
objection, as follows:
“Your initial conduct upon re-entering the jury room is a matter of
importance. It is not wise to immediately express a determination to
insist upon a certain verdict because if your sense of pride is aroused
you may hesitate to change your position even if you later decide that
you are wrong. Consult with one another, consider each other’s views
and deliberate with the objective of reaching an agreement if you can
do so without disturbing your individual judgment. Do not hesitate to
change an opinion if convinced that it is wrong. However, you should
not surrender honest opinions in order to be congenial or to reach a
verdict solely because of the opinion of your fellow jurors.”
{¶16} The essence of counsel’s objection was: (1) that the jury had
not requested further instruction and actually had the written instructions
with them to refer to if necessary; (2) that the instruction was not
appropriate; and, (3) that some of the language was similar to that in the
Adams App. No. 12CA936 13
Howard charge and could be viewed as an attempt to persuade them to a
verdict one way or another. We are not persuaded that giving this standard
Ohio instruction a second time, OJI 207.33, regarding initial conduct upon
entering the jury room, was error or coerced a verdict. Albeit, repetitive, this
instruction encourages jurors to consult with each other and consider each
other’s views. Moreover, this instruction advised jurors not to surrender
their honest convictions in order to “get along” with the other jurors or reach
a verdict “solely” because of their opinions.
{¶17} In summary, we do not find that the trial court’s modified
Howard charge or the further charge, OJI 207.33, complained of by
Appellant, “coerced” a unanimous verdict or created a coercive environment
for the minority jurors. We believe that although the Howard instruction
given here was not verbatim, it was adequate. OJI 207.33 was perhaps
superfluous, but not erroneous. Having found the trial court did not commit
plain error, we overrule Appellant’s first assignment of error and affirm the
judgment of the trial court.
The Trial Court’s Inclusion of the Definition of “Knowingly”
{¶18} Appellant was convicted of R.C. 2905.05(A)(1), gross sexual
imposition, which reads as follows:
(A) No personal shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have sexual
Adams App. No. 12CA936 14
contact with the offender; or cause two or more other persons to have sexual
contact when any of the following applies:
(1) The offender purposely compels the other person, or one of the other
persons, to submit by force or threat of force.
{¶19} Appellant also contends that the trial court committed plain
error by improperly instructing the jury on the definition of “knowingly.”
Appellant asserts this was inherently confusing because there was no clear
reason presented to the jury for the definition being provided. The trial court
gave the following instructions:
The term purpose. A person acts purposely when it is his or her specific
intention to cause a certain result or when the gist of the offense is a
prohibition against conduct of a certain nature regardless of what the
offender intends to accomplish thereby it is his specific intention to engage
in conduct of that nature.
Knowingly, a person acts knowingly regardless of his or her purpose when
he or she is aware that his or her conduct will probably cause a certain result,
or he or she is aware that his conduct will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such
circumstances probably exist. Since you cannot look into the mind of
another, knowledge is determined from all the facts and circumstances in
evidence.
{¶20} “A criminal defendant has the right to expect that the trial court
will give complete jury instructions on all issues raised by the evidence.”
State v. Maine, 4th Dist. No. 04CA46, 2005 Ohio-3742, ¶11 (internal
citation omitted), citing State v. Willingford, 49 Ohio St. 3d 247, 251, 551
N.E.2d 1279 (1990). When we review a trial court’s jury instructions, we
Adams App. No. 12CA936 15
may not judge “‘a single instruction to a jury* * *in artificial isolation,” but
we must view it “‘in the context of the overall charge.” ‘State v. Madrigal,
87 Ohio St. 3d 378, 396, 721 N.E.2d 52 (quoting Cupp v. Naughten, 414
U.S. 141, 94 S. Ct. 396, 400 (1973). Thus, we must consider the jury
instructions “as a whole” and then determine whether the jury charge
probably misled the jury in a manner materially affecting the complaining
party’s substantial rights. See Becker v. Lake Cty. Mem. Hosp. West, 53
Ohio St. 3d 202, 208, 560 N.E.2d 165 (1990).
{¶21} As the court explained in State v. Hardy, 28 Ohio St. 2d 89, 92,
276 N.E.2d 247 (1971): “In determining the question of prejudicial error in
instructions to the jury, the charge must be taken as a whole, and the portion
that is claimed to be erroneous or incomplete must be considered in relation
to, and as it affects and is affected by the other parts of the charge. If from
the entire charge it appears that a correct statement of the law was given in
such a manner that the jury could not have been misled, no prejudicial error
results.”
{¶22} We must not reverse a conviction due to error in the jury
instructions unless the error is so prejudicial that it may induce an erroneous
verdict. Maine ¶11. See Parma Heights v. Jaros, 69 Ohio App. 3d 623, 630
591 N.E.2d 726 (1990).
Adams App. No. 12CA936 16
{¶23} The transcript reveals at the conclusion of trial, the trial court
discussed modifications to the proposed jury instructions with the prosecutor
and defense counsel. Defense counsel declined to voice any objection
whatsoever to the inclusion of “knowingly” in the jury instructions. Thus,
again, we review the trial court’s jury instructions under the plain error
standard.
{¶24} The elements of the crime of which Appellant was convicted
do not include the term “knowingly.” “Knowingly” was defined for the
jury, pursuant to OJI 417.11and R.C. 2901.22(B). While inclusion of the
definition of “knowingly” may have been perceived odd or inexplicable to
the jury, we remain mindful that reviewing courts must consider jury
instructions in their entirety. State v. Delawder, 4th Dist. No. 10CA3344,
2012-Ohio-1923, at¶30. We are not convinced that the jury’s question
“Why are there two sexual imposition charges” is necessarily indicative of
confusion relating to the definition of “knowingly.”
{¶25} A similar argument was made in State v. DePompei, 8th Dist.
No. 4638, 1984 WL 7191 (Feb.16, 1984), where Appellant was convicted on
four counts of trafficking in drugs and twenty-seven counts of illegally
processing drug prescriptions. One of the assigned errors on appeal was that
the trial court instructed the jury on the definitions of “knowingly” and
Adams App. No. 12CA936 17
“purposely” and the jury was misled into convicting Appellant for having
the less culpable mental state (knowingly) than that which was required
(intentionally). The appellate court disagreed, finding that the jury was
clearly instructed that, before it could find Appellant guilty, it must find that
the appellant “did intentionally make, utter or sell a false or forged
prescription.”
{¶26} The transcript shows that “purposely” was defined to the jury,
using standard Ohio jury instructions. 3 The other definitions provided to the
jury, such as the “burden of proof,” “reasonable doubt,” “evidence,” and
“credibility” were also standard Ohio instructions.4 Specifically, as to the
elements of the crimes charged, the jury was instructed:
The defendant is charged in count one with gross sexual
imposition. Before you can find the defendant, Elmer E. Stephenson,
guilty of gross sexual imposition you must find beyond a reasonable
doubt that on or about May 21st, 2011 in Adams County, Ohio, that
Elmer E. Stephenson did have sexual contact with Chasity Morrison,
not the spouse of the said Elmer E. Stephenson, or cause Chasity
Morrison, not the spouse of the said Elmer E. Stephenson to have
sexual contact with the same Elmer E. Stephenson. The said Elmer E.
Stephenson having purposely (emphasis added) compelled Chasity
Morrison to submit by force or threat of force.
3
“Purposely” was defined for the jury, pursuant to OJI R.C. 417.01 and R.C. 2901.22(A).
4
“Burden of proof” was defined for the jury pursuant to OJI 405.05 and R.C. 2901.05(A). “Reasonable
doubt” was defined pursuant to OJI 405.07 and R.C. 2901.05(D). “Evidence” was defined pursuant to OJI
409.01, for direct and circumstantial evidence. “Credibility” was defined pursuant to OJI 409.05 and R.C.
2945.11.
Adams App. No. 12CA936 18
{¶27} The jury was instructed by verbatim language as to count two
of the indictment. Regarding count three, kidnapping, the trial court
instructed:
The defendant is charged in count three with kidnapping.
Before you can find the defendant Elmer E. Stephenson, guilty of
kidnapping in violation of 2905.01(A)(4) you must find beyond a
reasonable doubt that on or about May 21st, 2011 in Adams County,
Ohio that Elmer E. Stephenson did by force, threat, or deception
remove Chasity Morrison from the place where the other person was
found or restrain the liberty of Chasity Morrison with purpose
(emphasis added) to engage in sexual activity as defined in Section
2907.01 of the Revised Code with the said Chasity Morrison against
the victim’s will.
{¶28} The jury’s confusion as to “why are there two sexual imposition
charges” could just as well relate to the fact that the two charges stemmed
from an incident which occurred on one date in early 2011. When reviewing
the complete jury instructions, although inclusion of the definition of
“knowingly” was unnecessary, it is clear that the trial court provided the jury
with adequate instructions. “Ordinarily, reversible error does not consist of
misstatements or ambiguities in only part of the instructions.” Delawder
at¶30, citing State v. Pettit, 4th Dist. No. 99CA429, 2000 WL 897993, (July
5, 2000), at ¶4.
{¶29} In the context of review of the entire set of instructions given
to the jury, we do not believe the jury was misled or that prejudice occurred.
While Appellant argues the only evidence of sexual contact was from Ms.
Adams App. No. 12CA936 19
Morrison and thus, he was not convicted by an “overwhelming” amount of
evidence, we note that the jury was in the best position to assess Ms.
Morrison’s credibility. Noling, ¶ 54. See State v. DeHass, 10 Ohio St. 2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Also, the State
provided two additional witnesses. We conclude no plain error occurred by
provision of the instruction “knowingly.” As such, we affirm the judgment
of the trial court and overrule Appellant’s second assignment of error.
JUDGMENT AFFIRMED.
Adams App. No. 12CA936 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.