State v. Brumback
| Decision Date | 31 January 1996 |
| Docket Number | No. 94CA005868,94CA005868 |
| Citation | 671 N.E.2d 1064,109 Ohio App.3d 65 |
| Parties | , 113 Ed. Law Rep. 1292 The STATE of Ohio, Appellee, v. BRUMBACK, Appellant. |
| Court | Ohio Court of Appeals |
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, Elyria, for appellee.
Jonathan N. Garver, Cleveland, for appellant.
Appellant, Joan Brumback, appeals from her convictions in the Lorain County Court of Common Pleas on charges of theft in office and tampering with records. We affirm.
The state's charge of theft in office was based upon allegations that, while acting as treasurer for the Lorain City School District, Brumback reimbursed herself for mileage that she had not driven and awarded herself salary increases that were unauthorized by the Lorain City School Board of Education. The charge of tampering with records was based upon the submission of documentation to facilitate the theft. Brumback's defense was that she had driven the miles for which she had been reimbursed and that she had believed that all salary increases had been proper and authorized by the board. Character witness testimony at trial demonstrated that Brumback had an excellent reputation in the community for honesty and integrity. A number of witnesses also testified to their personal opinion of Brumback's honesty.
The trial lasted six days. The jury returned with a verdict of guilty on both charges. Brumback was sentenced to a six-month term of imprisonment on the charge of tampering with records and to a concurrent term of one year on the charge of theft in office. The trial court also ordered restitution in the amount of $51,081.07.
Brumback assigns ten errors on this appeal from her convictions.
Brumback argues that the court erred by accepting the verdicts and denying a motion for mistrial because one of the jurors, Ms. Dummitt, originally said that the guilty verdicts were not her own. R.C. 2945.77 and Crim.R. 31(D) provide for the polling of the jury after the verdict to ascertain whether there is a unanimous verdict. R.C. 2945.77 requires the jury to deliberate further if a juror declares that the verdict is not his own; Crim.R. 31(D) allows the court to either direct further deliberations or to discharge the jury, if "there is not unanimous concurrence" in the verdict. Both the statute and the rule preclude acceptance of the verdict only if the jury members are not in agreement on the determination of guilt.
If there is doubt whether a juror has agreed to the verdict, the court may interrogate the juror to clarify his answer. State v. Brown (1953), 110 Ohio App. 57, 61, 12 O.O.2d 227, 229, 168 N.E.2d 419, 422. If interrogation, without coercion or undue pressure, results in rehabilitation of the juror's verdict, the trial court may accept the verdict as the jury's true ascertainment of the defendant's guilt. Emmert v. State (1933), 127 Ohio St. 235, 237-238, 187 N.E. 862, 863. The court is also justified in requiring the jurors to deliberate further, or, if the juror's " 'reluctance to assent is so strong that it is extremely unlikely that he will ever voluntarily agree,' " it may discharge the jury and declare a mistrial. See State v. Worthy (Oct. 25, 1984), Franklin App. No. 84AP-390, unreported, 1984 WL 5956, quoting Annotation (1969), 25 A.L.R.3d 1149, 1151-1152; Crim.R. 31(D).
Our standard of review is abuse of discretion. See State v. Green (1990), 67 Ohio App.3d 72, 77, 585 N.E.2d 990, 992; Worthy, 1984 WL 5956. We will not disturb the court's ruling unless the court has exhibited an "unreasonable, arbitrary, or unconscionable" attitude. State v. Lowe (1994), 69 Ohio St.3d 527, 532, 634 N.E.2d 616, 620; State v. McClain (Mar. 30, 1994), Vinton App. No. 482, unreported, 1994 WL 111325. We find in this case that the trial court did not abuse its discretion.
The following exchange took place upon polling Juror Dummitt:
After polling the remaining jurors, who all indicated their agreement with the verdicts, Dummitt then stated that the verdicts were her true verdicts. The judge then dismissed the jury to the jury room while he discussed the situation with counsel.
Upon the jury's return, the judge again questioned Dummitt:
The trial court properly interrogated Dummitt to clarify her inconsistent statements and gave her an opportunity to deliberate further or to explain her answers. She refused those opportunities; instead, she affirmed her assent to the guilty verdicts on both counts in response to clear, precise questions from the court. We cannot find, under these circumstances, that the trial court abused its discretion in accepting the verdicts and denying Brumback's motion for mistrial.
Brumback's first assignment of error is overruled.
" '[I]f requested special instructions to the jury are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge.' " State v. McCarthy (1992), 65 Ohio St.3d 589, 593, 605 N.E.2d 911, 913, quoting Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49 O.O.2d 342, 253 N.E.2d 785, paragraph one of the syllabus. Conversely, if the general instructions fully and fairly cover the substance of the special instruction, a trial court properly refuses to give the requested special instruction. See State v. Barnd (1993), 85 Ohio App.3d 254, 259, 619 N.E.2d 518, 520, citing Rice v. Cleveland (1944), 144 Ohio St. 299, 304, 29 O.O. 447, 449, 58 N.E.2d 768, 771. An instruction is also properly refused if it does not apply to the facts governing the case. State v. Scott (1986), 26 Ohio St.3d 92, 101, 26 OBR 79, 87, 497 N.E.2d 55, 63.
Brumback relies upon State v. Snowden (1982), 7 Ohio App.3d 358, 7 OBR 458, 455 N.E.2d 1058, for the proposition that it is error for a trial court to refuse to instruct on mistake of fact, if timely requested, in a theft case. The court in Snowden stated:
Id. at 363, 7 OBR at 462, 455 N.E.2d at 1065.
While ignorance of the facts may excuse an otherwise illegal act, it is "an ancient maxim that all are conclusively presumed to know the law." State v. Pinkney (1988), 36 Ohio St.3d 190, 198, 522 N.E.2d 555, 561. In Pinkney, the Supreme Court of Ohio distinguished Snowden on the basis that mistake of law is not a recognized defense in Ohio. Id.
Brumback claims that the court erred in not giving her requested instructions on mistake of fact because, as did the defendant in Snowden, she defended on the grounds of honest purpose. Brumback's proposed instruction stated:
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