State v. Fisher , 2021 Ohio 3788 ( 2021 )


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  • [Cite as State v. Fisher, 
    2021-Ohio-3788
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    AUGLAIZE COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 2-21-06
    v.
    DWAYNE M. FISHER, JR.,                                    OPINION
    DEFENDANT-APPELLANT.
    Appeal from Auglaize County Municipal Court
    Trial Court No. 2020 CRB 00401
    Judgment Affirmed
    Date of Decision: October 25, 2021
    APPEARANCES:
    Jeremy M. Tomb for Appellant
    Reed D. Searcy for Appellee
    Case No. 2-21-06
    SHAW, J.
    {¶1} Defendant-appellant, Dwayne Fisher (“Fisher”), brings this appeal
    from the April 13, 2021, judgment of the Auglaize County Municipal Court
    sentencing him to 300 days in jail after Fisher was convicted by a jury of failure to
    comply with order or signal of police officer in violation of R.C. 2921.331(B), a
    first degree misdemeanor, attempted theft in violation of R.C. 2923.02(A) and R.C.
    2913.02(A)(1), a second degree misdemeanor, and criminal trespass in violation of
    R.C. 2911.21(A)(1), a fourth degree misdemeanor.
    Background
    {¶2} Wapak Ford is a vehicle dealership in Wapakoneta that also services
    local police cruisers. The cruisers are generally kept in an area called “the bullpen,”
    which is a fenced section of the dealership property. On July 10, 2020, it was
    discovered that a large hole had been cut in the bullpen’s fence and that the wheels,
    tires, headlights, and taillights were missing from a police cruiser. The police
    cruiser had been left on cinder blocks. There were no cameras observing the bullpen
    area and no suspects were identified from the incident.
    {¶3} On July 19, 2020, a married couple was browsing vehicles at Wapak
    Ford when they noticed a suspicious individual in the bullpen who was stretched
    across the front of a police cruiser with the cruiser’s hood up. At first the couple
    thought the individual was working on the police cruiser, but when the individual
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    saw the couple, the individual moved out of the couple’s view. The couple found it
    suspicious that the individual did not continue working on the vehicle. Shortly
    thereafter the couple observed a dark-colored ford truck with camo trim across the
    bottom driving away from the area. They reported the matter to the police. It was
    eventually discovered that the police cruiser in the bullpen was missing its hood.
    {¶4} Minutes after the couple observed the truck driving away from the
    dealership, a black truck with camo trim was observed driving at an excessive rate
    of speed on a residential street in Wapakoneta. Residents thought the driver was
    doing at least 50 mph in a 25 mph zone. Pictures of the truck were captured on one
    resident’s security camera. When the truck stopped at one point, a resident observed
    the license plate, HQW3632, and reported the matter to the police.
    {¶5} Wapakoneta police officers quickly located a vehicle matching the
    descriptions provided from the dealership and the residential neighborhood. When
    one officer activated his overhead lights to initiate a traffic stop of a black Ford truck
    with camo trim, the driver sped off. A chase ensued through streets and alleyways
    of Wapakoneta. Multiple officers attempted to follow the truck but it was driving
    at dangerous speeds down residential roads. Officers followed the truck outside of
    Wapakoneta but they eventually lost sight of the vehicle and stopped their pursuit.
    {¶6} Approximately fifteen minutes after officers lost sight of the truck they
    were pursuing, an Auglaize County Sheriff’s Deputy located a truck matching the
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    description with the license plate HQW3632. The deputy activated his overhead
    lights and initiated a traffic stop. The individual driving the truck, Fisher, pulled
    over immediately.
    {¶7} Fisher denied being involved in a police chase. In fact, he denied being
    in Wapakoneta at all that day. Fisher told officers that he was a mechanic, though
    he indicated he would prefer not to state where he worked.
    {¶8} Officers located numerous suspicious items in Fisher’s truck such as a
    ski-mask, black gloves, and various tools. Most suspicious were “three nuts with
    washers on them” that were “the exact same size that was used to hold a hood onto
    those hood hinges.” (Tr. at 257-258). The next day, the hood that had been attached
    to the police cruiser in the Wapak Ford bullpen was located in a cornfield in an area
    near where the Ford truck with the camo trim had been lost during pursuit.
    {¶9} On July 20, 2020, Fisher was charged with “failure to comply with order
    or signal of police officer” in violation of R.C. 2921.331(B), a first degree
    misdemeanor,     attempted    theft   in    violation   of   R.C.   2923.02(A)   and
    R.C.2913.02(A)(1), a second degree misdemeanor, and criminal trespass in
    violation of R.C. 2911.21(A)(1), a fourth degree misdemeanor. Fisher pled not
    guilty to the charges and proceeded to a jury trial, which was held February 22-23,
    2021.
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    Case No. 2-21-06
    {¶10} Just after the case was submitted to the jury for deliberations, an
    alternate juror came forward to inform the trial court and the parties of concerns
    over two comments that had been made by a member of the jury during recesses in
    the trial. The alternate juror explained the comments, then the trial court and the
    parties asked the alternate juror questions regarding the comments. The trial court
    determined that it would allow deliberations to proceed; however, in the event that
    the jury found Fisher guilty of any of the charges, the trial court indicated it would
    allow the jury to be polled and questioned regarding the purportedly improper
    comments.
    {¶11} Ultimately the jury found Fisher guilty of all counts in the complaint.
    The jury was then asked whether they had heard any of the improper comments
    made by a fellow juror and only a few had. The jurors were asked if they were
    influenced by the comments and they indicated that they were not. All jurors,
    including the juror who made the purportedly improper comments, indicated that
    they made their determination based on the evidence.
    {¶12} Nevertheless, Fisher moved for a mistrial and requested a new trial
    based on juror misconduct. The state filed a written response. On April 13, 2020,
    the trial court filed a judgment entry overruling Fisher’s motion for a new trial.
    {¶13} On April 13, 2020, the matter proceeded to sentencing. Fisher was
    sentenced to 180 days in jail on the failure to comply with order or signal of police
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    officer charge, 90 days in jail on the attempted theft charge, and 30 days in jail on
    the criminal trespass charge. The jail terms were ordered to be served consecutively,
    for an aggregate term of 300 days. A judgment entry memorializing Fisher’s
    sentence was filed that same day. It is from this judgment that Fisher appeals,
    asserting the following assignments of error for our review.
    Assignment of Error No. 1
    The Trial Court committed error in overruling the defendant’s
    oral motion for a new trial pursuant to Criminal Rule 33(A) and
    determining the best course of action was to let the jury finish its
    deliberations and render a verdict and further erred by not
    conducting a hearing before all parties at that time when the court
    had an opportunity to investigate and address the alleged
    irregularities before the verdict was accepted by the trial court.
    Assignment of Error No. 2
    The Trial Court committed error in overruling defendant’s oral
    motion for a new trial pursuant to Criminal Rule 33(A) when
    juror misconduct substantially affected defendant’s material
    rights to be tried by a fair and impartial jury.
    {¶14} As both assignments of error address the trial court’s denial of Fisher’s
    motion for a new trial, we will address them together.
    First and Second Assignments of Error
    {¶15} In his first assignment of error, Fisher argues that the trial court erred
    by permitting the jury to continue its deliberations in this matter before investigating
    the purportedly improper juror comments and how the comments impacted the jury.
    In his second assignment of error, Fisher argues that the juror’s comments
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    constituted misconduct and they affected Fisher’s substantial rights. Thus he
    contends the trial court abused its discretion by denying his motion for a new trial.
    Standard of Review
    {¶16} A determination on a Crim.R. 33 motion for a new trial is within the
    sound discretion of the trial court and will not be reversed absent an abuse of
    discretion. State v. Cummings, 8th Dist. Cuyahoga No. 106261, 
    2018-Ohio-3993
    ,
    ¶ 19, citing State v. Schiebel, 
    55 Ohio St.3d 71
    , 77 (1990). “ ‘The term “abuse of
    discretion” * * * implies that the court’s attitude is unreasonable, arbitrary or
    unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    ,
    219 (1983), quoting State v. Adams, 
    62 Ohio St.2d 151
    , (1980).
    {¶17} Furthermore, as to Fisher’s claim that the trial court mishandled the
    inquiry into the juror’s purportedly improper comments, the Supreme Court of Ohio
    has held that “[a]s a reviewing court, we show deference to the trial judge, who sees
    and hears the events and thus is in a better position to accurately evaluate the
    situation and determine the appropriate scope of inquiry.” State v. Hessler, 
    90 Ohio St.3d 108
    , 115-116, 
    2000-Ohio-30
    , citing State v. Huertas, 
    51 Ohio St.3d 22
    , 29
    (1990). Therefore, we employ an abuse-of-discretion standard as to how the trial
    court handled alleged juror misconduct. 
    Id.
     citing State v. Adams, 
    62 Ohio St.2d 151
    , 157 (1980).
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    Case No. 2-21-06
    Relevant Authority
    {¶18} Pursuant to Crim.R. 33(A)(2), “A new trial may be granted on motion
    of the defendant for any of the following causes affecting materially his substantial
    rights: * * * (2) Misconduct of the jury, prosecuting attorney, or the witnesses for
    the state.” A new trial shall not be granted on this or any other of the allowed
    grounds of Crim.R. 33 “unless it affirmatively appears from the record that the
    defendant was prejudiced thereby or was prevented from having a fair trial.”
    Crim.R. 33(E)(5).
    {¶19} In addressing claims of juror misconduct, a court must employ a two-
    step analysis. First, a court will determine whether juror misconduct occurred, and
    second, if juror misconduct is found, the court will determine whether the
    misconduct materially affected the defendant’s substantial rights. State v. Taylor,
    
    73 Ohio App.3d 827
    , 833 (4th Dist.1991); State v. Samatar, 
    152 Ohio App.3d 311
    ,
    
    2003-Ohio-1639
    , ¶ 35 (10th Dist.). The party complaining of alleged juror
    misconduct must establish prejudice. State v. Edwards, 10th Dist. Franklin No.
    17AP-738, 
    2019-Ohio-3012
    , ¶ 52.
    Analysis
    {¶20} In order to determine whether juror misconduct occurred in this
    matter, and whether the trial court erred in the procedure that was conducted to
    determine potential juror misconduct, we must review the specifics of what
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    Case No. 2-21-06
    transpired in its proper context. The first time the trial court and the parties were
    made aware that there was any purported juror misconduct was after the case had
    been submitted to the jury for deliberations. At that time, an alternate juror
    approached the trial court and indicated that a member of the jury had made some
    potentially inappropriate comments. The trial court asked the alternate juror to
    explain the comments and the following exchange occurred.
    [Alternate Juror]: Yesterday the comment was – he said, I’m no
    lawyer or anything, but don’t both sides get to review the same
    evidence.
    COURT: And that was – was that concerning one of the
    objections made when we took a break?
    [Alternate Juror]: Yes, exactly.
    COURT: Okay. Was there any response from the other members
    to that?
    [Alternate Juror]: Uh—no, no real response uh—somebody may
    have said mmm—I don’t know or something, but I don’t know
    anybody – but basically that was the end of it. Uh—it felt
    inappropriate at that time and that’s why there was so much
    silence there, so uh—I’m sorry for all this but it’s just in good
    conscience. I want to make sure it’s known. I don’t know what’s
    appropriate and what’s not. I know I was instructed to not speak
    of the case at all. I basically didn’t speak at all, uh—even when
    they were talking about general just day to day stuff, weather,
    whatever.
    COURT: [Prosecutor] on this point do you have any questions?
    [Prosecutor]: Uh—the only question is – it will probably be the
    same question for your next tidbit, but again, this was said
    yesterday correct?
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    Case No. 2-21-06
    [Alternate Juror]: Correct.
    [Prosecutor]: So it was said before the instructions the Judge
    were given – gave at the end just now before we all left?
    [Alternate Juror]: Today, yes.
    [Prosecutor]: Okay.
    [Alternate Juror]: But he had instructed us many times not to
    discuss the case when we were in there.
    [Prosecutor]: Sure, but as far as that comment, he made that – it
    was before the final instructions?
    [Alternate Juror]: Correct.
    [Prosecutor]: Okay.
    COURT: [Defense counsel]?
    [Defense Counsel]: Thank you your honor. Did you get the sense
    when he made that statement uh—did he give you a sense that he
    kind of fashioned some kind of thought of concept in his mind of
    my client’s innocence or guilt?
    [Alternate Juror]: Uh—I didn’t personally, but I did feel like it
    could be construed that way by somebody else.
    [Defense Counsel]: Did he seem incredulous because we were
    contesting whether information had been presented?
    [Alternate Juror]: Yes, that’s how it felt. And again, I don’t know
    cause we were ushered out, but it seemed to me that you did not
    get some point of evidence, I believe it was a video clip or
    something yesterday and uh—we were moved out pretty quickly
    and uh—that’s when he made that comment.
    [Defense counsel]: Okay, thank you for that.
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    Case No. 2-21-06
    COURT: Okay, can you explain the comment made earlier
    today?
    [Alternate Juror]: The comment today was uh—he doesn’t – isn’t
    – I think he said isn’t the defendant going to testify. Uh—and
    then he said – he had like a short pause there and then he said if I
    were uh—if I were innocent I would want to testify, uh—that’s
    what he said and then another juror did say uh—I don’t think
    that uh—the defendant has to testify. Then that was the end of
    that conversation. Again it created a pause uh—kind of an uneasy
    pause uh—after that statement just cause it, to me, at least
    personally, felt really inappropriate.
    [Prosecutor]: Yes your honor. Same question uh—I had before,
    was that, when the second comment was made was that before
    Judge gave his final instructions to the jury?
    [Alternate Juror]: Yes.
    [Prosecutor]: Okay. All right. No further questions.
    COURT: And [defense counsel].
    [Defense counsel]: I just want to confirm, do you feel like that was
    complying with the Court’s instructions early on which was not
    to discuss innocence or guilt or about what was a proper
    presumption to make whether the defendant took the stand or
    not?
    [Alternate Juror]: I don’t feel it was appropriate, no.
    (Tr. at 336-340).
    {¶21} According to the parties, Fisher orally moved for a mistrial after this
    discussion, but the trial court denied the request at that time.1 The trial court
    1
    This was not recorded in the transcript but the parties and the trial court are in agreement that it occurred.
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    Case No. 2-21-06
    indicated that the jury would be allowed to deliberate, and if any guilty verdicts
    were returned, the jury could be questioned regarding any comments that had been
    made, whether the comments were heard, and whether they had any impact on the
    matter.
    {¶22} The jury returned guilty verdicts on all counts against Fisher. After
    the verdicts were read, the jury was polled and the jurors individually indicated that
    the verdicts announced were their true, individual verdicts.
    {¶23} The trial court then addressed the jury and stated that an issue had been
    brought to the court’s attention regarding comments that had been made by a juror
    regarding a defendant’s right not to testify. The trial court told the jury that the court
    was going to permit the parties to inquire regarding the comments.
    {¶24} Following some questioning, defense counsel was able to identify the
    juror who made the comments and he addressed the juror directly. Defense counsel
    stated, “There was a statement made today that [you said] why wouldn’t you take
    the stand if you weren’t guilty. Did you make that statement?” (Tr. at 346). The
    juror responded
    I don’t know if I made the statement in that – with those remarks
    um.. I had questions why the defendant wouldn’t take the stand.
    Because my understanding that the defendant would take the
    stand. Take the stand and be questioned by the attorneys so the
    comment wasn’t in either way persuaded in any decision as to
    what my verdict in the trial is.
    (Tr. at 346).
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    Case No. 2-21-06
    {¶25} The juror was then asked if he recalled in voir dire that if the defendant
    did not take the stand it did not mean he was guilty or not guilty. The juror indicated
    he vaguely recalled that. When asked, the juror also stated that he recalled the judge
    giving an instruction that he was not permitted to consider “that” before the juror
    made any statement with regard to the defendant testifying. Further, the juror
    indicated he recalled being instructed not to talk about guilt, or anything regarding
    the proceedings, amongst the jury prior to deliberations.
    {¶26} After the juror who made the comments was addressed directly, the
    jury as a whole was asked who had heard the comments made by the juror in
    question regarding the defendant testifying, and three jurors indicated that they
    heard a comment. When questioned about whether the comment impacted his
    opinion, one juror indicated that he did not consider why the defendant would not
    take the stand, but he “wondered if it was an actual thing that they have a choice so
    I understand they have a choice to or not to (inaudible).” (Tr. at 349). Another juror
    indicated she was aware even before the trial court’s instructions that a defendant
    did not have to take the stand. The third juror who heard the comment indicated the
    comment did not influence which way he was going to vote.
    {¶27} Defense counsel then re-addressed the juror who made the purportedly
    improper comment, or asked a purportedly improper question. Defense counsel
    asked the juror to clarify why he asked the question regarding the defendant
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    Case No. 2-21-06
    testifying and the juror stated, “I wasn’t I wasn’t [sic] ah aware whether he would
    take the stand or not take the stand and I had asked the question because I wasn’t
    understanding as to actual proceedings of them taking the stand and not taking the
    stand.” (Tr. at 350).
    {¶28} Defense counsel then replied, “Well the alternate juror[’]s position on
    this when he testified was that you said ‘why would you take the stand if you weren’t
    guilty.’ ” (Id.) The juror responded, “I didn’t say it like that. I don’t believe that it
    was said it [sic] like that at all.” (Id.) Following the response, defense counsel
    indicated he had no further questions.
    {¶29} The prosecutor then asked each juror individually, “when reaching
    your verdict in this case did you come to your decision based on the testimony as
    its presented, the law, the judge’s instructions, and nothing else?” (Tr. at 351). All
    eight jurors responded that they only considered the information and evidence
    presented as instructed.
    {¶30} Following the prosecutor’s question, the judge specifically stated to
    the jury:
    The instructions you were given was that it is not necessary for
    the defendant to take the witness stand in his own defense. He has
    a constitutional right [not] to testify. You must not consider the
    fact he did not testify for any purpose. Did any of you, * * * did
    you consider his not testifying for any purpose? Did you [sic]
    whether or not he testified for any purpose?
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    (Tr. at 353).     In response to the judge’s question, each juror individually
    affirmatively indicated that he or she did not consider the fact that Fisher did not
    testify for any purpose.
    {¶31} Notwithstanding these statements, Fisher moved for a new trial,
    alleging juror misconduct in this matter. The trial court permitted briefing on the
    issue, then filed a written entry analyzing the issue of juror misconduct. Ultimately
    the trial court denied Fisher’s motion for a new trial. The trial court found that one
    comment was procedural in nature and did not constitute misconduct. Next, the trial
    court determined that any other purportedly improper comments by one juror were
    made prior to the trial court’s final instructions, wherein the jury was specifically
    instructed that Fisher had a constitutional right not to testify and that the jury could
    not consider the fact that he did not testify for any purpose. Further, the trial court
    indicated that all of the jurors were individually questioned and they all indicated
    that the verdicts were based on the testimony and evidence presented during trial.
    Finally, the trial court determined that Fisher was not prejudiced by the comments
    made by the juror and that, even absent the comments, the jury would have been
    able to find Fisher guilty based on the totality of the evidence.
    {¶32} On appeal, Fisher raises two primary issues with the trial court’s denial
    of his motion for a new trial. First, he contends that the trial court had a duty to hold
    a hearing immediately upon learning of the purportedly improper comments of the
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    Case No. 2-21-06
    juror and thus the trial court erred by allowing deliberations to continue before
    questioning the jury regarding the purportedly improper juror comments.
    {¶33} While it might have been a permissible option to question the jury
    about potentially improper comments prior to the jury rendering a verdict, the
    important fact is that the trial court held what amounted to a hearing on the alleged
    juror misconduct wherein the purported misconduct was addressed, regardless of
    the timing of the hearing. The Supreme Court of the United States has stated: “If
    the hearing and determination to replace a juror during trial would have adequately
    protected respondent’s right to due process of law * * * we see no reason why a
    post-trial hearing and determination would be any less protective or possible.”
    Smith v. Phillips, 
    455 U.S. 209
    , 218, 
    102 S.Ct. 940
    , 946 (1982) at fn 8. Here, the
    trial court specifically inquired regarding the comments after the verdict was
    announced and allowed the parties to inquire as well. Although the trial court could
    have interrupted the deliberations to address the matter, there is no indication that a
    post-deliberation inquiry was any less sufficient than a pre-deliberation inquiry
    would have been.
    {¶34} The fact is, the trial court had a duty to hold a hearing and it did so.
    State v. Gunnell, 
    132 Ohio St.3d 442
    , 
    2012-Ohio-3236
    , ¶ 36, citing State v.
    Phillips, 
    74 Ohio St.3d 72
    , 88–89 (1995) (“[W]hen a trial court learns of possible
    improprieties that might affect the impartiality of a juror, the court has a duty to hold
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    Case No. 2-21-06
    a hearing to determine whether any bias has been introduced into the jury
    room.”). Fisher cites no legal authority that the hearing or inquiry by the trial court
    had to be done prior to deliberations. Rather, the important issue was that the trial
    court inquire into possible prejudice with a juror and to give the parties an
    opportunity to address any alleged juror bias. See Gunnell at ¶ 37. Even the seminal
    case of Remmer v. U.S., 
    347 U.S. 227
    , 
    74 S.Ct. 450
    , did not indicate that a hearing
    on possible juror misconduct had to occur prior to deliberations. Therefore, in the
    absence of authority to the contrary, we cannot find that the trial court abused its
    discretion by the way it conducted the inquiry into the matter of juror misconduct.
    This is particularly true given that if the jury had returned not guilty verdicts, any
    need for a hearing would have been completely obviated. Accordingly, Fisher’s
    first assignment of error is overruled.
    {¶35} Next, Fisher argues that there was juror “misconduct” in this matter
    and that the misconduct substantially affected his material rights. Because of what
    he claims was juror misconduct, he contends that the trial court abused its discretion
    by denying his motion for a new trial.
    {¶36} Notably, from the inquiry into the matter, it is unclear exactly what the
    juror actually said in the jury room, thus it is difficult to label it affirmatively as
    misconduct. Nevertheless, even if we assumed the worst form of the juror’s
    statements as expressed through the alternate juror, and even if we assumed that
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    they were misconduct, there is no indication that the comments impacted Fisher’s
    substantial rights. In fact, the inquiry by the parties and the trial court into the matter
    shows just the opposite.
    {¶37} The jurors were specifically asked whether they considered Fisher’s
    decision not to testify for any purpose, and the jurors indicated that they did not. “A
    juror’s belief in his or her own impartiality is not inherently suspect and may be
    relied upon by the trial court.” State v. Phillips, 
    74 Ohio St.3d 72
    , 89 (1995), citing
    Smith v. Phillips, 
    455 U.S. at 217,
     
    102 S.Ct. at 947
     at fn. 7.
    {¶38} Furthermore, as the trial court stated in its entry denying Fisher’s
    motion for a new trial, any errant comments made by one juror were prior to the
    trial court’s final jury instructions in this case, which specifically stated, “It is not
    necessary that the defendant take the witness stand in his own defense. He has a
    constitutional right not to testify. You must not consider the fact that he did not
    testify for any purpose.” (Tr. at 331). Pursuant to the Supreme Court of Ohio, “A
    jury is presumed to follow the instructions, including curative instructions, given it
    by a trial judge.” State v. Garner, 
    74 Ohio St.3d 49
    , 59 (1995), citing State v. Loza,
    
    71 Ohio St.3d 61
    , 75 (1994).
    {¶39} There simply is no indication of prejudice in this case, even assuming
    that the juror’s comments were improper. To the contrary, the jury members were
    very specifically and explicitly questioned regarding the comments and the jury
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    Case No. 2-21-06
    members indicated that their verdicts were made based only on the evidence
    presented. Given the inquiry and the jury’s responses, we cannot find that the trial
    court abused its discretion by denying Fisher’s motion for a new trial. Therefore,
    Fisher’s second assignment of error is overruled.
    Conclusion
    {¶40} For the foregoing reasons Fisher’s assignments of error are overruled
    and the judgment and sentence of the Auglaize County Municipal Court is affirmed.
    Judgment Affirmed
    ZIMMERMAN and MILLER, J.J., concur.
    /jlr
    -19-
    

Document Info

Docket Number: 2-21-06

Citation Numbers: 2021 Ohio 3788

Judges: Shaw

Filed Date: 10/25/2021

Precedential Status: Precedential

Modified Date: 10/25/2021