State v. Bracone ( 2014 )

[Cite as State v. Bracone, 2014-Ohio-4058.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 2013 AP 11 0046
PAUL L. BRACONE, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2013 CR 07 0141
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 16, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PATRICK J. WILLIAMS JASON L. JACKSON
ASSISTANT PROSECUTOR FITZPATRICK, ZIMMERMAN & ROSE
125 East High Avenue Post Office Box 308
New Philadelphia, Ohio 44663 Uhrichsville, Ohio 44683
[Cite as State v. Bracone, 2014-Ohio-4058.]
Wise, J.
{¶1} Appellant Paul L. Bracone, Jr. appeals his conviction and sentence
entered in the Tuscarawas County Court of Common Pleas following a jury trial.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On March 27, 2011, Emily Bracone was at home where she resided with
her father, Defendant-Appellant Paul Bracone. (T. at. 238). She was looking for a video
that she was downloading for school on her father's laptop. (T. at 240). The laptop was
password protected. Id.
{¶4} While looking for her video, Emily observed thumbnail pictures of a
woman with a tattoo on her upper thigh, which was identical to her mother’s tattoo. The
thumbnail appeared to be of a video taken in her mother's (Beth Evans') bathroom
located at 217 ½ Grant Street, Dennison, Ohio. Beth Evans rented the apartment from
Appellant. (T. at 241).
{¶5} Emily Bracone contacted her mother and indicated they needed to talk.
She then met her mother and her mother’s boyfriend at her mother’s apartment. (T. p.
241-242). Upon searching, they located a small camera that had been placed behind a
panel in the vanity and was pointed at the shower. There was a small hole in the panel
for the camera lens and two screws that were attached to a housing that held the
camera in place. (T. at 242- 243, 263- 264). Upon finding the camera, Beth Evans and
Emily Bracone contacted the Dennison Police Department. (T. at 243, 264). Patrolman
Matt Grezlik came and removed and secured the camera (T. at 264, 300-303).
Patrolman Grezlik also photographed the closed circuit camera.
Tuscarawas County, Case No. 2013 AP 11 0046 3
{¶6} Patrolman Grezlik contacted the Prosecutor's Office and obtained a
search warrant for Paul Bracone's residence on North Second Street Extension in
Dennison. (T. at 303-304). The search warrant was executed and the following items of
significance were seized:
{¶7} 1) Desktop computer, bearing serial number BR59501 from Appellant's
bedroom. (T. at 304);
{¶8} 2) Various items of pornography and sex toys (T. at 305);
{¶9} 3) Appellant's laptop bearing serial number JPK84J1 which was located
on a night stand in the living room, roughly ten feet from Appellant's bedroom (T. at
306). This was the laptop upon which Emily Bracone saw the tell-tale tattoo; and
{¶10} 4) Emily Bracone's desktop located in her bedroom bearing serial number
27950F1. (T. at 300-301).
{¶11} All of the computers and multimedia devices were placed in evidence.
They were secured for processing by B.C.I.& I. (T. at 307). Appellant was then asked to
go to the Dennison Police Department, where he was interviewed. The interview was
recorded. (T. at 311). Significantly, Appellant admitted that he set up the video camera
under the sink, though he indicated he did so to obtain audio of cocaine usage. (T. at
315-317). He also admitted that he knew Beth Evans' twelve year old daughter, Baleigh,
showers in the bathroom. Appellant admitted to seeing videos of Beth Evans taken with
the camera. (T. at 331).
{¶12} Appellant denied having any child pornography. (T. at 324). He admitted
to watching a memory card's worth of video from the camera. (T. at 337). He claimed to
have deleted videos of nudity. (T. at 338). Eventually, the focus of the investigation
Tuscarawas County, Case No. 2013 AP 11 0046 4
turned to a marijuana grow operation located behind Beth Evans residence at 217 Grant
Street, Dennison, Ohio. Bracone admitted he had an active growing operation, claiming
to have only ten plants. (T. at. 340).
{¶13} Appellant gave consent to search the premises located at 217 Grant
Street, Dennison, Ohio. (T. at 346). Consent was also obtained from the titled owner,
Lucille Bracone. (T. at 346).
{¶14} Upon entering 217 Grant Street, Dennison, Ohio, an elaborate indoor
grow operation was found, along with the receiver for the closed-circuit camera. (T. at
348). There was a room dedicated to smaller plants, a room for medium plants, and a
room for large plants. (T. at 349). There was a grow table, hydroponic watering power
converter systems, reflective wall covering and grow lights. (T. at 349-357).
{¶15} The marijuana and grow paraphernalia was photographed and placed in
the Dennison Police Department's evidence room. (T. at 358-360). The marijuana was
cut and hung before being analyzed by B.C.I. & I. (T. at 360).
{¶16} The computers were taken to B.C.I. & I. for processing by computer
forensic specialist Joann Gibb. Ms. Gibb analyzed Appellant’s desktop computer, serial
number BR59501. She analyzed two hard drives from the desktop. There were one
hundred six (106) items found indicative of child pornography. Among them were the
following:
{¶17} 1) "11 yo girl rides the cock and loves it kiddy porn incest sex naughty little
girl slut priceless pu.mpg."
{¶18} 2) "pedo anal;"
{¶19} 3) Photos of a young girl;
Tuscarawas County, Case No. 2013 AP 11 0046 5
{¶20} 4) "Kelly's firstfuck;"
{¶21} 5) "pedo x sexo anal15 anos."
{¶22} In each instance, the videos or photos had specific identifiers that were
indicative of child pornography. (T. at 437-445). Further, there was a link file for "pedo x
sexo anal15 anos" to PJ's Recents. The Appellant's nickname is PJ. (T. at 260). His
user name on his laptop was also PJ. (T. at 256). There were also numerous child porn
indicative links on the desktop hard drives. (T. at 451-454).
{¶23} Ms. Gibb also processed Appellant’s laptop, serial number JPK8YJ1. On
that laptop the bathroom videos were found. She found 163 videos, 132 of which had
some sort of nudity. (T. at 456). Included among those videos were 22 videos of a
young child using the shower. (T. at 457). All of these images were saved in a folder
called "PJ". (T. at 457). Ms. Evans identified each of the shower videos of the young
female as being videos of her daughter Baleigh Evans (DOB: 5/21/1999). The videos
appeared to have been taken on September 21, 2010, September 24, 2010, October
12, 2010, November 25, 2010, and November 29, 2010. The videos show Baleigh
Evans (age eleven) in various states of undress. In all clips identified by Ms. Evans,
Baleigh Evans (age 11) was undressed and the camera was focused on her genitalia
and/or buttocks. (T. at 265-275).
{¶24} On the laptop, there also were videos of a young girl masturbating
("ten_yr_old_orgasm") and a video of a young girl performing oral sex on an adult male
("3rage). (T. at 466-467).
Tuscarawas County, Case No. 2013 AP 11 0046 6
{¶25} Ms. Gibb also processed the computers found in Emily Bracone's room.
Significantly there was nothing of evidentiary value found on these computers (T. at
454-455).
{¶26} Jennifer Acurio, a forensic scientist in the drug chemistry division of B.C.l.
& l., analyzed the marijuana seized from Appellant's grow room. She performed a
microscopic test and a color test on the items, submitted. (T. at 523-524, 526). She
concluded that the items submitted were, in fact, marijuana. (T. at 526). She testified
that the marijuana was properly dried and cut. (T. at 528-529). After analyzing the
substance, Ms. Acurio prepared a report, and the weight of the marijuana submitted
was 1950 grams.
{¶27} On July 2, 2013, based upon the above evidence, the Tuscarawas County
Grand Jury returned a nine-count indictment against Appellant Paul A. Bracone, Jr.
Count one alleged one count of pandering obscenity involving a minor in violation of
R.C. §2907.32(A)(5), a felony of the fourth degree. Count two alleged a count of illegal
use of a minor in nudity oriented material in violation of R.C. §2907.323(A)(1), a felony
of the second degree. Counts three through seven alleged violations of R.C.
§2907.08(C), voyeurism, felonies of the fifth degree. Count eight alleged illegal
cultivation of marijuana in violation of R.C. §2925.04(A), a felony of the third degree.
Count nine alleged one count possession of drugs (marijuana) in violation of R.C.
§2925.11(A)(C)(3)(c), also a felony of the third degree.
{¶28} The matter proceeded to trial from September 10, 2013 through
September 16, 2013. Following deliberations, the jury found Appellant guilty of counts
one, two, eight, and nine. The jury was deadlocked on the voyeurism counts set forth in
Tuscarawas County, Case No. 2013 AP 11 0046 7
counts three through seven. The jury was discharged and the matter was set for
sentencing on October 29, 2013.
{¶29} Appellant failed to appear at the sentencing hearing on October 29, 2013.
A warrant was issued but later withdrawn when it was learned that Appellant had health
issues.
{¶30} The matter was rescheduled for October 31, 2013. Appellant appeared for
sentencing on that date. Appellant was sentenced to eighteen (18) months on count
one, pandering obscenity involving a minor in violation of R.C. §2907.321, a felony of
the fourth degree. He was also sentenced to a four (4) year concurrent term for count
two, illegal use of a minor in nudity oriented material of performance in violation of R.C.
§2907.323(A)(1), a felony of the second degree.
{¶31} Regarding counts eight and nine, the State elected to proceed to sentence
on count eight, illegal cultivation of marijuana in violation of R.C. §2907.05, a felony of
the third degree. Appellant was sentenced to a three (3) year term to be served
consecutive to the aggregate four year term imposed for counts one and two. This
sentence was reserved in favor of three years community control to begin upon
Appellant's release from the Ohio Department of Rehabilitation and Correction after
serving the aggregate four year term imposed on counts one and two.
{¶32} Counts three through seven were dismissed without prejudice upon
Motion of the State. Said Motion was made on the basis that, under the "same acts
test," counts three through seven would merge into count two for purposes of
sentencing. Appellant was labeled a Tier II sex offender. He was informed of his duties
under law.
Tuscarawas County, Case No. 2013 AP 11 0046 8
{¶33} All of the above was journalized by the Tuscarawas County Court of
Common Pleas by Judgment Entry filed on November 4, 2013.
{¶34} It is from this conviction and sentence Appellant now appeals, assigning
the following errors for review:
ASSIGNMENTS OF ERROR
{¶35} “I. THE CONVICTIONS OF PAUL BRACONE, JR., WERE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE
{¶36} “II. THE COURT ERRED IN OVERRULING THE MOTION IN LIMINE TO
EXCLUDE EVIDENCE OF OTHERWISE LEGAL PORNOGRAPHY.
{¶37} “III. THE COURT ERRED IN INCLUDING THE PLAINTIFF'S WITNESSES
AS EXPERTS WHEN READING THE EXPERT INSTRUCTION TO THE JURY.
{¶38} “IV. THE COURT ERRED IN NOT PROVIDING NOT GUILTY PLEA
VERDICT FORMS TO THE JURY ON THE MARIJUANA CHARGES.”
I.
{¶39} In his First Assignment of Error, Appellant claims that his convictions were
against the manifest weight of the evidence. We disagree.
{¶40} On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 1997–Ohio–52. The
Tuscarawas County, Case No. 2013 AP 11 0046 9
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175.
{¶41} Appellant was convicted of the following offenses:
{¶42} (Count One): Pandering obscenity involving a minor, in violation of R.C.
2907.32(A)(5), which provides:
{¶43} “(A) No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
{¶44} “ ***
{¶45} “(5) Buy, procure, possess, or control any obscene material with purpose
to violate division (A)(2) or (4) of this section.”
{¶46} (Count Two): Illegal use of a minor in nudity oriented material or
performance, in violation of R.C. 2907.323(A)(1), which provides
{¶47} “(A) No person shall do any of the following:
{¶48} “(1) Photograph any minor who is not the person's child or ward in a state
of nudity, or create, direct, produce, or transfer any material or performance that shows
the minor in a state of nudity, unless both of the following apply:
{¶49} “(a) The material or performance is, or is to be, sold, disseminated,
displayed, possessed, controlled, brought or caused to be brought into this state, or
presented for a bona fide artistic, medical, scientific, educational, religious,
governmental, judicial, or other proper purpose, by or to a physician, psychologist,
sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian,
member of the clergy, prosecutor, judge, or other person having a proper interest in the
material or performance;
Tuscarawas County, Case No. 2013 AP 11 0046 10
{¶50} “(b) The minor's parents, guardian, or custodian consents in writing to the
photographing of the minor, to the use of the minor in the material or performance, or to
the transfer of the material and to the specific manner in which the material or
performance is to be used.”
{¶51} (Count Eight): Illegal manufacture of controlled substance or cultivation of
marihuana, in an amount exceeding 1000 grams but less than 5000 grams, in violation
of R.C. 2925.04(A), which provides:
{¶52} “(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a controlled
substance.
{¶53} “ ***
{¶54} (5) If the drug involved in the violation is marihuana, the penalty for the
offense shall be determined as follows:
{¶55} “ ***
{¶56} (d) If the amount of marihuana involved equals or exceeds one thousand
grams but is less than five thousand grams, illegal cultivation of marihuana is a felony of
the third degree or, if the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, a felony of the second degree, and division (C) of section 2929.13
of the Revised Code applies in determining whether to impose a prison term on the
offender.”
{¶57} (Count Nine): Drug Possession (marijuana), in violation of R.C.
2925.11(A)(C)(3)(c), which provides:
Tuscarawas County, Case No. 2013 AP 11 0046 11
{¶58} (A) No person shall knowingly obtain, possess, or use a controlled
substance or a controlled substance analog.
{¶59} “***
{¶60} (C) Whoever violates division (A) of this section is guilty of one of the
following:
{¶61} “ ***
{¶62} (3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than hashish, whoever
violates division (A) of this section is guilty of possession of marihuana. The penalty for
the offense shall be determined as follows:
{¶63} “***
{¶64} (c) If the amount of the drug involved equals or exceeds two hundred
grams but is less than one thousand grams, possession of marihuana is a felony of the
fifth degree, and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.”
{¶65} Count One – Pandering obscenity involving a minor
{¶66} The evidence provided at trial in support of this charge was found on
Appellant’s laptop computer and desktop computer. Testimony was presented that the
desktop computer was located in Appellant’s bedroom, had been there for
approximately ten to eleven years, and that he was the sole user of said computer. (T.
at 244-245). Similar testimony was presented that Appellant was the owner of the
laptop, that he was the primary user and that the laptop was password protected. (T. at
243-244).
Tuscarawas County, Case No. 2013 AP 11 0046 12
{¶67} Testimony and evidence was presented that the desktop contained 106
items of child pornography. Five of these videos/photographs were presented to the
jury. Each of these items contained identifiers associated with child pornography. (T. at
437-445). Further, one of the photographs contained a link file to “PJs recents”.
Appellant’s nickname was PJ and his user name on his laptop was “PJ”. (T. at 256,
260).
{¶68} Additional testimony was presented as to two videos of child pornography
found on Appellant’s laptop computer. These two videos were saved in a file labeled as
“PJ” which also contained the shower videos taken in Beth Evans’ bathroom. (T. at
457).
{¶69} Count Two – Illegal use of a minor in nudity oriented material or
performance.
{¶70} In support of this charge, the State provided testimony and evidence that
Appellant recorded eleven year old Baleigh Evans in a state of nudity. Appellant
admitted that he installed the hidden camera in Beth Evans’ bathroom. (T. at 315-317).
While Appellant asserted that he deleted any videos containing nudity, the evidence
showed that 132 videos downloaded to his computer contained nudity and 22 of those
were of Baleigh Evans, the focus of which was her genitalia or buttocks. (T. at 265-275).
{¶71} Count Eight – Illegal Cultivation of Marijuana and Count Nine –
Possession of Drugs (Marijuana)
{¶72} Patrolman Matt Grezlik testified as to the sophisticated marijuana grow
operation found on Appellant’s property. (T. at 358-360). He testified that he took
photographs of the evidence and then seized and stored same in the evidence room at
Tuscarawas County, Case No. 2013 AP 11 0046 13
the Dennison Police Department. Id. These photographs were admitted as evidence.
Additionally, the marijuana was dried and cut and sent to B.C.I. & I. for analysis. (T. at
360).
{¶73} Jennifer Acurio of B.C.I. & I. testified that she analyzed the substance
submitted to her and found it to be marijuana. (T. at 523-526). She further testified that
the weight of the marijuana submitted was 1950 grams.
{¶74} Furthermore, Appellant admitted that he had an indoor grow operation at
his property on Grant Street. (T. at 340). Both he and his mother executed consent and
search forms. (T. at 346).
{¶75} Upon review, we find the testimony and exhibits support the findings of
guilty on all counts, and find no manifest miscarriage of justice.
{¶76} Appellant’s First Assignment of Error is overruled.
II.
{¶77} In his Second Assignment of Error, Appellant claims the trial court erred in
overruling his motion in limine regarding his possession of legal pornography. We
disagree.
{¶78} At trial, Appellant made a motion in limine to exclude the mention or
introduction of any pornographic materials located on Appellant’s computers which did
not contain minors. The trial court denied the motion and admitted such evidence over
objection. (T. at 225).
{¶79} Pursuant to Evid.R. 401, relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the determination
Tuscarawas County, Case No. 2013 AP 11 0046 14
of the action more probable or less probable than it would be without the evidence.
Evid.R. 402 provides that evidence which is not relevant is not admissible.
{¶80} An appellate court must afford the trial court broad discretion in
determining the admissibility of evidence. State v. Maurer (1984), 15 Ohio St. 3d 239,
265, 473 N.E.2d 768, 791-792; State v. Awkal (1996), 76 Ohio St. 3d 324, 667 N.E.2d
960. The trial court's decision in this regard may not be disturbed on appeal absent an
abuse of discretion. Id. Moreover, an appellate court may not reverse a trial court's
determination concerning the admissibility of evidence unless the appellant
demonstrates he has been materially prejudice. Id.
{¶81} Upon review, Appellant's possession of adult pornographic material
involving adults had little if any relevance to the charges of pandering sexually oriented
matter involving a minor and illegal use of a minor in nudity oriented material. We
likewise find that any relevance to the charges of voyeurism is marginal. Nevertheless,
we find Appellant failed to demonstrate that he was prejudiced by the introduction of this
evidence. The voluminous evidence of the videos and photographs found on Appellant’s
computers, combined with the testimony of Beth Evans and Appellant himself,
established Appellant's guilt. The introduction of the other pornographic material was
inconsequential to Appellant's conviction.
{¶82} Appellant’s Second Assignment of Error is overruled.
III.
{¶83} In his Third Assignment of Error, Appellant claims the trial court erred in
including Appellant’s witnesses, Joann Gibb and Jennifer Acurio, as experts when
reading the expert instructions to the jury. We disagree.
Tuscarawas County, Case No. 2013 AP 11 0046 15
{¶84} An appellate court should apply an abuse of discretion standard in
reviewing a court's decision to admit or exclude expert testimony. Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 144–146, 118 S. Ct. 512, 139 L.Ed.2d 508(1997); State v. Williams,
4 Ohio St. 3d 53, 58, 446 N.E.2d 444(1983). “To the extent that doing so is necessary to
avoid making an unreasonable, arbitrary, or unconscionable decision, a trial court is
obliged to apprise itself of the details of proffered evidence.” Valentine v. Conrad, 110
Ohio St. 3d 42, 2006–Ohio–3561, 850 N.E.2d 683 at ¶ 20. Accord, State v. Bruce, 5th
Dist. No, 2006–CA–45, 2008–Ohio–5709, ¶ 37. An abuse of discretion “suggests
unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not
the role of this court to substitute its judgment for that of the trial court.” Id. See also
State v. Adams, 62 Ohio St. 2d at 157, 404 N.E.2d 144.
{¶85} Courts should favor the admissibility of expert testimony whenever it is
relevant and the criteria of Evid.R. 702 are met. State v. Nemeth, 82 Ohio St. 3d 202,
207, 694 N.E.2d 1332(1998), citing State v. Williams, 4 Ohio St. 3d 53, 446 N.E.2d
444(1983), syllabus.
{¶86} Evid.R. 702 provides that a witness may testify as an expert if all of the
following apply:
{¶87} “(A) The witness' testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception common
among lay persons;
{¶88} “(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;
Tuscarawas County, Case No. 2013 AP 11 0046 16
{¶89} “(C) The witness' testimony is based on reliable scientific, technical, or
other specialized information.
{¶90} “Here, the trial court provided the jury with following instruction:
{¶91} “Generally, a witness may not express an opinion. However, someone
who follows a profession may express his or her opinion because of his or her education,
knowledge and experience. These individuals are called Expert Witnesses. The Expert
Witnesses in his case are the following:
{¶92} “For the State of Ohio
{¶93} “Joann Gibb, Bureau of Criminal Identification and Investigation
(B.C.I. and I.) – Computer Forensic Analyst
{¶94} “Jennifer Acurio, B.C.I. and I. Forensic Analyst (Drugs)
{¶95} ****
{¶96} “Expert Witness testimony is admitted for whatever assistance it may
provide to help you arrive at just verdicts.
{¶97} “Questions have been asked in which Expert Witnesses were permitted
to assume that certain facts were true and to give an opinion based upon such
assumption. You must determine whether the assumed facts, upon which the Expert
based his or her opinion are true. If any assumed fact was not established, you will
determine its effect upon the opinion of the Expert.”
{¶98} “As with other witness, upon you alone rests the duty of deciding what
weight should be given to the testimony of the Experts. In determining its weight, you
may take into consideration his or her skill, experience, knowledge, veracity, familiarity
with the facts of this case, and the usual rules for testing credibility in determine (sic) the
Tuscarawas County, Case No. 2013 AP 11 0046 17
weight the be given to testimony.” (emphasis in original). (Final Legal Instructions at 16-
17).
{¶99} At trial, Joann Gibb testified that she is a computer forensic specialist who
has been employed by B.C.I. & I. for sixteen years. (T. at 430). She testified as to what
she does as a forensic analyst. Id. She explained that she is trained to look for specific
indicators and search terms when analyzing digital media in child pornography cases. (T.
at 436). She further testified as to the procedures and safeguards she employed upon
receiving Appellant’s computers and the analysis she performed. (T. at 430-432). She
testified as to the significance of her findings. (T. at 436-444).
{¶100} Similarly, Jennifer Acurio testified that she is a forensic scientist in the
drug chemistry area and that she has been employed by B.C.I. & I. since 2005. (T. at
522). She further testified that she obtained her B.S. in Forensic Chemistry form Ohio
University and a Master’s Degree in Analytical Chemistry from Northeastern Illinois
University. Additionally, she completed a one-year program in drug chemistry in Illinois
and a two-month training program in Ohio. (T. at 522-523). Ms. Acurio went on to explain
the process of analyzing substances suspected of being marijuana. (T. at 523).
{¶101} Based on the foregoing, we find that the trial court did not err in finding
Ms. Gibb and Ms, Acurio met the requirements set forth in Evid.R. 702.
{¶102} Appellant’s Third Assignment of Error is overruled.
IV.
{¶103} In his Fourth Assignment of Error, Appellant claims the trial court erred in
failing to provide “not guilty” verdict forms to the jury on Counts Eight and Nine.
Tuscarawas County, Case No. 2013 AP 11 0046 18
{¶104} For this Court to reverse Appellant's convictions, we must find that the
trial court's procedure regarding its jury instructions was prejudicial.
{¶105} In State v. Fisher, 99 Ohio St. 3d 127, 2003-Ohio-2761, 789 N.E.2d 222,
the Ohio Supreme Court recognized that “[i]n Arizona v. Fulminante (1991), 499 U.S.
279, 306-312, 111 S. Ct. 1246, 113 L. Ed. 2d 302, the United States Supreme Court
denominated the two types of constitutional errors that may occur in the course of a
criminal proceeding - ‘trial errors,’ which are reviewable for harmless error, and
‘structural errors,’ which are per se cause for reversal. * * * Trial error is error which
occurred during the presentation of the case to the jury and which may therefore be
quantitatively assessed in the context of other evidence presented in order to determine
whether its admission was harmless beyond a reasonable doubt. * * * Structural errors,
on the other hand, defy analysis by ‘harmless error’ standards because they affect the
framework within which the trial proceeds, rather than simply [being] an error in the trial
process itself. [Fulminante] at 309 and 310, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d
302. Consequently, a structural error mandates a finding of per se prejudice.” Fisher at
¶ 9. (Internal quotation marks omitted). See, also, State v. Wamsley, 117 Ohio St. 3d
388, 884 N.E.2d 45, 2008-Ohio-1195 at ¶ 15.
{¶106} In the case sub judice, Appellant was found guilty of the following allied
offenses of similar import: illegal cultivation of marijuana (R.C. 292504(A)) and
possession of drugs (marijuana) (2925.11(A)(C)(3)(c).
{¶107} With regard to these two charges, the jury was instructed as follows:
{¶108} “You are now instructed as a matter of law, that the Defendant has
acknowledged and admitted, that he cultivated marijuana on 3/27/2011 and possessed
Tuscarawas County, Case No. 2013 AP 11 0046 19
marijuana on that date. The State of Ohio has charged the Defendant with felonies of
the third degree because the State alleges the amount of marijuana cultivated and
possessed by the Defendant on 3/27/2011 exceeded one thousand (1000) grams but
was less than five thousand (5000) grams. In Ohio the degree of felony or misdemeanor
pertaining to drug-related crimes such as Cultivation of Marijuana and Possession of
Marijuana is determined by the weight of the marijuana cultivated or possessed. You
will be presented with Verdict Forms of Guilty pertaining to Counts Eight and Nine of
the Indictment but no degree of felony or misdemeanor has been designated on the
respective Verdict Forms. You will determine from the evidence, beyond a reasonable
doubt, the specific weight of the marijuana cultivated and/or possessed by the
Defendant on 3/27/2011. You will insert the weight of the marijuana either cultivated or
possessed at the appropriate location on the Verdict Forms provided for you relative to
those counts. (emphasis in original).” (Final Legal Instructions at 14).
{¶109} The corresponding Verdict forms read as follows”
{¶110} COUNT EIGHT – ILLEGAL (SIC) OF MARIJUANA (R.C. 2925.04[A])-
VERDICT OF GUILTY
{¶111} “We, the Jury, impaneled and sworn, find the Defendant, Paul L.
Bracone, Jr., Guilty, beyond a reasonable doubt, of Illegal Cultivation of Marijuana in
violation of R.C. 2925.04(A) as charged in Count Eight of the Indictment. We further find
that the weight of the marijuana cultivated by the Defendant is 1,950 (filled in by hand in
by jury) grams.
{¶112} “All twelve (12) of our members agree. This verdict of Guilty is reached
this 13th (filled in by hand by the jury) day of September, 2013.” (emphasis in original).
Tuscarawas County, Case No. 2013 AP 11 0046 20
{¶113} COUNT NINE–POSSESSION OF DRUGS (MARIJUANA) (R.C.
2925.11[A][C][3][c])-VERDICT OF GUILTY
{¶114} “We, the Jury, impaneled and sworn, find the Defendant, Paul L.
Bracone, Jr., Guilty, beyond a reasonable doubt, of Possession of Drugs (Marijuana)
in violation of R.C. 2925.11(A)(C)(3)(c) as charged in Count Nine of the Indictment. We
further find that the weight of the marijuana possessed by the Defendant is 1,950 (filled
in by hand by the jury) grams.
{¶115} “All twelve (12) of our members agree. This verdict of Guilty is reached
this 13th (filled in by hand by the jury) day of September, 2013.” (emphasis in original).
{¶116} Appellant objected to the above instructions, arguing that the jury should
also be presented with “Not Guilty” verdict forms.
{¶117} In this instant case, we find that the trial court ‘s failure to provide the jury
with “Not Guilty” verdict forms on the marijuana charges was error, we do not find that it
rises to the level of structural error. As set forth above, Appellant admitted to growing
and possessing marijuana. As such, the jury had only to determine the weight of the
marijuana which would result in either a felony or a misdemeanor conviction. This was
explained to the jury. We therefore find any error in not providing “Not Guilty” verdict
forms to the jury to be harmless error.
Tuscarawas County, Case No. 2013 AP 11 0046 21
{¶118} Appellant’s Fourth Assignment of Error is overruled.
{¶119} For the foregoing reasons, the judgment of the Court of Common Pleas,
Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs separately.
JWW/d 0821
Tuscarawas County, Case No. 2013 AP 11 0046 22
Hoffman, P.J., concurring
{¶120} I concur in the majority's analysis and disposition of Appellant's first, third
and fourth assignments of error.
{¶121} I further concur in the majority's disposition of Appellant's second
assignment of error. I do so because I find the otherwise legal pornography more than
"marginally" relevant to prove the "purpose of sexual gratification and arousal" element
in the voyeurism counts of the indictment. State v. Huffman, (2006), 165 Ohio App. 3d
518. The trial court did not abuse its discretion is admitting this evidence.
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HON. WILLIAM B. HOFFMAN