State v. Jacobs

I dissent because I believe that the trial court's failure to answer the jury's question was an error which affected the outcome of the proceedings. A plain error is reversible error not objected to at trial, "which, if permitted, would have a material adverse affect on the character and public confidence in judicial proceedings." Schade v. Carnegie Body Co. (1982),70 Ohio St. 2d 207, 209, 24 O.O.3d 316, 317, 436 N.E.2d 1001, 1003. In this case, the jury's question went directly to one of the elements of the offense, on which the prosecution's evidence was far from overwhelming. Compare State v. Gleason (1989), 65 Ohio App. 3d 206, 583 N.E.2d 975 (jury's question did not relate to whether the defendant committed the offense charged). Consequently, I would hold that the trial court committed plain error by failing to answer the jury's question after promising to do so. See State v. Black (1991), 78 Ohio App. 3d 130, 134,604 N.E.2d 171, 173-174.

Further, while the record does not show that appellant objected when the court did not answer the question, his request for a special instruction on the same issue on which the jury sought clarification was tantamount to an objection to the charge given. See State v. Jackson (1984), 20 Ohio App. 3d 240,243, 20 OBR 302, 304-305, 485 N.E.2d 778, 781. I would reverse appellant's conviction and remand the matter for a new trial.