State v. Craft

• Decision Date: 27 April 1977
• Citation: 52 Ohio App.2d 1,367 N.E.2d 1221
• Parties: , 6 O.O.3d 1 The STATE of Ohio, Appellee, v. CRAFT, Appellant.
• Court: Ohio Court of Appeals

Page 1

52 Ohio App.2d 1

367 N.E.2d 1221, 6 O.O.3d 1

The STATE of Ohio, Appellee, v. CRAFT, Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

April 27, 1977.

Syllabus by the Court

1. A "plain error," committed by a trial court and reviewable on appeal, is an obvious error which is prejudicial to an accused, although neither objected to nor affirmatively waived, which, if allowed to stand, would have a substantial adverse impact on the integrity of and public confidence in judicial proceedings.

2. The contention that R.C. 2919.22(A) is unconstitutional for vagueness, put forth for the first time on appeal, does not carry the elements necessary to qualify the issue as "plain error," so as to be considered in the appellate court.

Thomas A. Luebbers, Paul J. Gorman and Ann Marie Tracey, Cincinnati, for appellee.

Myron Y. Davis, Jr., Cincinnati, for appellant.

BLACK, Judge.

Ms. Craft appeals from her conviction of child endangering, a violation of R.C. 2919.22(A). Two issues are raised on appeal: (1) Whether R.C. 2919.22(A) is unconstitutionally vague and overbroad, and (2) whether the evidence presented at trial was insufficient to support a finding of guilt. We affirm the conviction.

The first assignment of error questions the constitutionality of R.C. 2919.22(A). Before reaching the substance of this claim, we note that appellant did not bring this issue to the attention of the trial court by motion, objection or otherwise. The general rule is that an appellate court will consider only such errors as were "preserved" in the trial court. State v. Childs (1968), 14 Ohio St.2d 56, 236 N.E.2d 545; State v. Williams (1974), 39 Ohio St.2d 20, 313 N.E.2d 859. The general rule has been so well established that extensive citations are not needed. See, generally, 3 Ohio Jurisprudence 2d 38, Appellate Review, Section 185 and 5 American Jurisprudence 2d 29, Appeal and Error, Section 545.

The prohibition is not absolute. The reviewing court has discretion under Ohio rules to choose those unpreserved issues which it will decide.

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." (Emphasis supplied.) Crim.R. 52(B).

"Errors not specifically pointed out in the record and separately argued by brief may be disregarded." (Emphasis supplied.) App.R. 12(A). See also R.C. 2505.21.

Discretion in this matter is traditional. Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793; State v. Hensley (1906), 75 Ohio St. 255, 79 N.E. 462. The Supreme Court of South Carolina calls it "a matter of grace." State v. Griffin (1924), 129 S.C. 200, 124 S.E. 81. The Illinois Supreme Court states, somewhat more precisely:

"However, (the general rule) is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process." People v. Burson (1957), 11 Ill.2d 360, 370, 143 N.E.2d 239, 245.

What is "plain error"? For the purpose of reaching an understanding, we divide errors into four classes.

(1) Harmless errors. These are errors which were brought to the trial court's attention, but which do not

provide grounds for reversal because they do not affect substantial rights and are not prejudicial to the defendant. See Crim.R. 52(A).

(2) Preserved errors. These are mistakes which were brought to the trial court's attention, and which affect substantial rights; being prejudicial to the defendant, they provide grounds for reversal.

(3) Waived errors. This category comprises prejudicial errors which may or may not have been brought to the trial court's attention, but which were in fact or in contemplation of law waived prior to appeal, and which, because of the waiver, do not provide grounds for reversal.

(4) Plain errors. This class involves errors which were not brought to the trial court's attention but which affect substantial rights, are deemed too fundamental to be waived in contemplation of law, and "may be noticed" on appeal. See Crim.R. 52(B).

The first class is non-prejudicial, while the last three are composed of prejudicial errors. In the instant case, we are not concerned with a harmless error (because constitutional questions almost inevitably affect substantial rights), nor with a preserved error (because in the instant case, defendant failed to bring the error to the attention of the trial judge).

How do we distinguish between a waived error and a plain error? More precisely, for this case, what are the guidelines to determine what prejudicial errors will or will not be deemed waived as a matter of law by defendant's failure to object at the trial level? ¹ Crim.R. 52(B) refers to "errors or defects affecting substantial rights," but this is not definitive because many substantial rights may be waived by inaction.

A waiver by inaction is generally effective in two circumstances: (1) those instances where the criminal rules specifically provide that a defendant must act at a designated time, or lose his assignment of error on appeal; and (2) those errors which, if brought to the attention of the trial judge at the very moment they occurred, could have been corrected by an appropriate action or statement. Examples of (1) are pretrial motions made mandatory by Crim.R. 12(B). Examples of (2) are rulings on almost all objections to leading questions, or on objections to relevancy where the questions did not stray too far from the course. Even though rights may be of a constitutional nature, they may be waived by inaction in these instances.

At the other end of the spectrum are errors which will be considered on appeal as a matter of course, although not preserved. All errors rendering the judgment void are plain errors, whether the invalidity arises from the lack of jurisdiction over the person, or the absence of a right to try the defendant for the offense for which he was convicted. Examples are the acceptance of a guilty or no contest plea to a felony without a full compliance with the requirements of Crim.R. 11(C), and sentencing a convicted defendant to imprisonment after a trial at which he was not represented by counsel the defendant not having waived that basic constitutional right.

However, between these two extremes lies a broad spectrum of errors that may or may not be "plain." Neither the Ohio nor the federal criminal rules contains a definition of "plain error." We draw our conclusions from case law in this state, our sister states and the federal courts.

The general rule excluding from consideration errors which have not been "preserved" follows from the adversary nature of our criminal procedures, whereby a party must look to his own interests. Its purpose is practical: to prevent the defensive trial tactic of remaining silent on a fatal error during trial with the expectation of demanding a reversal on appeal if the verdict is guilty. This tactic gives the defendant two bites at the apple, thereby eroding the finality of trial court judgments.

The plain error exception to the general rule is exercised cautiously. There must be "clear miscarriage of justice" (McIntyre v. United States (C.A. 8, 1967), 380 F.2d 822, 825, n. 1), "error both obvious and substantial" (Sykes v. United States (C.A. 5, 1966), 373 F.2d 607, 612), "grave errors which seriously affect substantial rights of the accused" (Wright v. United States (C.A. 10, 1962), 301 F.2d 412, 414), and the like. But these expressions are too broad to afford a workable guideline for identifying plain error. A common theme is that it takes an exceptional case to overcome the traditional reluctance both to rule on a constitutional issue and to note on appeal what the lower court had no opportunity to decide.

A review of Ohio, ² other states, ³ and federal ⁴ cases leads to the conclusion that the decisions have been made on a case by case basis, and that there are no "hard and fast classifications in either the application of the principle (recognizing plain error) or the use of a descriptive title." 3 Wright, Federal Practice and Procedure, Section 856, at n. 86 (1969). Wright, supra, at page 373, suggests that the concept is one which "appellate courts find impossible to define, save that they know it when they see it."

As Wright points out, there appears to be a common purpose underlying the plain error rule in addition to protecting the defendant that is, to protect both the integrity and the reputation of the judicial system. The motive is public, not private.

We conclude that plain error may be identified as obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public's confidence in judicial proceedings. The error must be obvious on the records, ⁵ palpable, ⁶ and fundamental, ⁷ and in addition it must occur in exceptional circumstances where the appellate court acts in the public interest because the error affects "the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson (1936), 297 U.S. 157, at 160, 56 S.Ct. 391, at 392, 80 L.Ed. 555. The interest to be advanced is "the rule of law." This is a government of laws and not of men, even judges.

Under this guideline, does the claim that R.C. 2919.22(A) is unconstitutional for vagueness and the absence of a determination of the issue in the trial court constitute plain error? We think not. First, the constitutional invalidity of the statute is not "obvious." We have not been cited and we do not find a controlling precedent that holds that the language of this statute is vague and overbroad. The determination of its constitutionality, therefore, turns on a careful balancing of state and individual interests, together with an analysis of whether the statute gives fair notice of an ascertainable standard upon...