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State v. Marshall

Court of Appeals of Ohio, Fifth District

July 9, 2013

STATE OF OHIO Plaintiff-Appellee
v.
JEFF L. MARSHALL Defendant-Appellant

Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2011 CR 12 0290

For Plaintiff-Appellee RYAN STYER Tuscarawas County Prosecutor R. SCOTT DEEDRICK for Tuscarawas County

For Defendant-Appellant GERALD A. LATANICH Tuscarawas County Public Defender Office

Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

OPINION

Hoffman, P.J.

{¶1} Defendant-appellant Jeff L. Marshall appeals his conviction entered by the Tuscarawas County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE[1]

{¶2} On December 13, 2012, Appellant was indicted on two counts of felony OVI, in violation of R.C. 4511.19; one count of failure to stop after an accident on public roads or highways, in violation of R.C. 4549.02; and one count of possession of drugs, in violation of R.C. 2925.11.

{¶3} Following a jury trial, Appellant was found guilty of all the charged offenses. The trial court entered convictions based on the jury's verdict and sentenced Appellant to a mandatory term in the Ohio Department of Corrections, and to complete a program at a community based correctional facility.

{¶4} Appellant now appeals, assigning as error:

{¶5} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, BY DENYING THE APPELLANT A FAIR TRIAL UNDER THE 6TH AND 14THAMENDMENT, WHEN IT REFUSED TO REMOVE A POTENTIAL JUROR FOR CAUSE WHEN REQUESTED BY THE APPELLANT.

{¶6} "II. THERE WAS INSUFFICIENT EVIDENCE AT TRIAL TO ESTABLISH THAT THE APPELLANT WAS THE PERSON NAMED IN THE FIVE PRIOR OVI CONVICTIONS, THIS VIOLATES THE 14TH AMENDMENT DUE PROCESS CLAUSE."

I.

{¶7} In the first assignment of error, Appellant maintains the trial court erred in denying his request to remove a juror for cause. Specifically, Appellant asserts during voir dire, Juror Hart indicated she would not follow the law and was biased; therefore, should have been removed for cause.

{¶8} Appellant cites R.C. 2945.25. The statute reads,

{¶9} "A person called as a juror in a criminal case may be challenged for the following causes:" * * *

{¶10} "(B) That he is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial;"

{¶11} The ultimate question is whether the juror swore he could set aside any opinion he might hold and decide the case on the evidence, and whether the juror's protestation of impartiality should be believed. State v. Perez (2009), 124 Ohio St.3d 122. The proper test to determine a juror's bias is "whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality." State v. Blanton (1997), 121 Ohio App.3d 162. The burden is on the challenger. Id. Unless it is shown the juror actually has such an opinion, in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside. Id.; State v. Wiley (1981), 5 Ohio App.3d 86. The trial court's determination cannot be overruled absent an abuse of discretion. State v. Wilson (1972), 29 Ohio St.2d 203.

{¶12} Appellant claims the trial court abused its discretion in not excusing Juror Hart for cause. Counsel for Appellant asked the prospective jurors whether the allegation of five prior OVI convictions caused them major concerns. The following exchange occurred on the record during voir dire,

{¶13} "The Court: Mr. Cooke, I'm just going to go ahead and interject for everybody here. The, the facts are going to be presented about what happened on a specific day and so part of the elements of what happened on that specific day, and unfortunately I don't have them committed to memory, but would be, you know, on this day and this time that the elements of a, of a operating a vehicle under the influence occurred and, and that would have something to do with the impairment and, and operating a vehicle. But another part of that that raises it to the, the level that it is would be that the State would have to put forth some evidence to show that there were those prior convictions. Mr. Latanich is phrasing it as an alleged priors because he doesn't have to prove it, they do. And so that, that would be an element that, that raises the seriousness of the offense. But it doesn't change the fact that the first thing you look at is whether or not on that day these certain things occurred. And so I don't know if that clarifies it, I mean for some of the people that are struggling with the idea that, that there are some priors, the first thing you have to look at though is whether or not the offense occurred on this day. And then, if you find that it, that the State proved it, then you would go on to determine whether or not the State also proved that there were priors. And that has to do with enhancing or, or elevating the level of the offense. Okay.

{¶14} "Mr. Latanich: Answered your questions?

{¶15} "Juror: Yeah.

{¶16} "Mr. Latanich: Okay. Ms. Hart, I believed you raised your hand.

{¶17} "Juror: Yes.

{¶18} "Mr. Latanich: Okay. Does the fact that they're alleging five prior convictions, does that lessen the burden of proof in this case in your mind?

{¶19} "Juror: I hate to say it but yes, because to me it just sounds like a pattern of ...


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