State v. Jones

• Decision Date: 30 November 2018
• Docket Number: NO. C-170358,C-170358
• Citation: 124 N.E.3d 439,2018 Ohio 4754
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Seante JONES, Defendant-Appellant.
• Court: Ohio Court of Appeals

124 N.E.3d 439
2018 Ohio 4754

STATE of Ohio, Plaintiff-Appellee,
v.
Seante JONES, Defendant-Appellant.

NO. C-170358

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

Date of Judgment Entry on Appeal: November 30, 2018

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.

OPINION.

Cunningham, Presiding Judge.

{¶ 1} Following a jury trial, defendant-appellant Seante Jones challenges his conviction for complicity to theft, in violation of R.C. 2923.03. Jones had been observed shoplifting men's clothing from a Burlington Coat Factory store. He was apprehended minutes after leaving the store with merchandise that he had not paid for. Because the trial court's error in permitting the state to exercise a peremptory challenge out of sequence was not a structural error, mandating automatic reversal, Jones was required to demonstrate prejudice flowing from that error. We conclude that he was not prejudiced, and affirm.

I. Shoplifting Men's Clothing

{¶ 2} On June 29, 2016, Steve Seiter, a loss prevention associate with over 16 years of experience, observed Jones enter a Burlington Coat Factory store with another person. Seiter followed Jones and his companion, later identified as Ricardo Scott, on the store's numerous surveillance cameras for 15 to 20 minutes. Jones and Scott went to the men's clothing department. While Jones perused the merchandise, Seiter noticed that he "continued to watch the people around him to see if they

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were possibly paying attention to what he was doing." Based upon his experience, Seiter concluded that Jones was preparing to steal store merchandise. Jones then selected a number of items of clothing, including a pair of black shorts and a red shirt. As Scott left the store, Seiter observed Jones enter the fitting rooms with the clothing. Jones remained in the fitting room for five minutes. When he left the fitting rooms, Jones put some items back on a rack and then headed for the store's exit at a fast pace. He did not stop to pay for any merchandise.

{¶ 3} Seiter then checked to see if Jones had replaced all the items of clothing, but he could not locate the black shorts and red shirt. Seiter alerted the Springdale Police Department of the suspected theft.

{¶ 4} Based on Seiter's description of the vehicle that Jones and Scott departed in, Springdale Police Officer Joseph Robers stopped their vehicle within minutes at a gas station located a quarter of a mile from the store. Officer Robers ordered Jones and Scott from the vehicle. Officer Robers found that both Jones and Scott had merchandise from the Burlington Coat Factory stuffed inside their pants. Additional store merchandise was found in the vehicle, including the black shorts and red shirt that Jones had taken into the fitting room.

{¶ 5} Seiter arrived at the gas station and identified Jones and Scott as the two persons that he had watched at the store. He identified the merchandise as belonging to Burlington Coat Factory, including the black shorts and red shirt, each of which still had sales tags attached. Neither item had been paid for.

{¶ 6} Jones was charged by complaint with the theft of "various clothing items and a watch" from Burlington Coat Factory, in violation of R.C. 2913.02. Jones exercised his right to a jury trial. During the selection of the jury, and over Jones' objection, the trial court permitted the state to exercise its third and final peremptory challenge "out of sequence," after the state had waived that challenge, and after the selection of alternate jurors was already under way. Jones also filed a motion for a mistrial on the basis of the flawed jury selection. After offering an explanation for its actions, the trial court denied the motion and the case proceeded to trial.

{¶ 7} At trial, Seiter and Officer Robers testified on behalf of the state. Jones testified in his own defense and stated that he had paid Scott to drive him to a mall but that Scott had insisted that the two stop at the Burlington Coat Factory first. He claimed to have accompanied Scott into the store, looked at clothing for about five minutes, and then left the store to wait for Scott. Jones stated that Scott had pulled stolen clothing items out of his pants once he returned to the vehicle.

{¶ 8} Jones testified that when the two were stopped by Officer Robers, there "[w]asn't anything found on me. Everything was found in the car. I'm not even denying that it was stolen items in the car. Yes, because my dude did go in there and steal. * * * [T]here was items found in the car. * * * I'm not going to deny that fact at all." Jones also admitted into evidence a video recording of some of the events that Seiter had captured on the day of the theft. Seiter had admitted at trial that he had failed to record most of the events that he described at trial. The admitted video recording showed Jones and Scott's long stay in the men's clothing department but did not show Jones taking any merchandise.

{¶ 9} At the conclusion of the trial, the state requested a complicity instruction, under R.C. 2923.03, alleging that Jones had acted not only as a principal but also

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as an aider and abettor in the theft offense charged in the complaint. The trial court gave the instruction over Jones' objection. The jury returned a not-guilty verdict on the theft offense, but it found Jones guilty of complicity to theft. The trial court entered judgment on the verdict and imposed a jail sentence of 180 days, with 177 days suspended. It also imposed a $200 fine, court costs, and a six-month period of community control.

{¶ 10} Jones appealed raising three assignments of error.

II. Peremptory-Challenge Issue

{¶ 11} For clarity, we will address Jones' assignments of error in temporal order. In his third assignment of error, Jones asserts that the trial court erred in allowing the state to use its third peremptory challenge "out of sequence," after it had previously waived the challenge. He further argues that he was not required to demonstrate actual prejudice flowing from that error to overturn his conviction. He urges us to follow the automatic-reversal rule enunciated by the Tenth Appellate District in 1998, when it held that "as a matter of law, [a] defendant [is] not required to make a showing of actual prejudice where the state is granted an ‘extra’ peremptory challenge." State v. Holloway , 129 Ohio App.3d 790, 798, 719 N.E.2d 70 (10th Dist.1998). The state argues that we apply our own precedent holding that when a trial court errs in extending additional peremptory challenges to the state, "such error should not be deemed of such prejudicial character as to require a reversal of the judgment," absent a showing of prejudice flowing from that error. State v. Bohannon , 64 Ohio App. 431, 439, 28 N.E.2d 1010 (1st Dist.1940).

{¶ 12} While permitting the state to exercise a peremptory challenge out of sequence was error, it was not one of the very limited class of trial errors which are not reviewable for harmless error under Crim.R. 52(A), and which mandate automatic reversal. Thus, to prevail, Jones must demonstrate actual prejudice flowing from that error. But he cannot.

a. Two-step review for error and prejudice under Crim.R. 52(A)

{¶ 13} Crim.R. 52(A) governs this criminal appeal of a nonforfeited error, and provides that "[a]ny error * * * which does not affect substantial rights shall be disregarded." A reviewing court must first determine whether there was an error—a deviation from a legal rule. Second, the reviewing court must analyze the trial court record to determine whether the error "affect[ed] substantial rights" of the defendant, that is, whether the error was prejudicial and affected the outcome of the trial court proceedings. See State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7. But there is "a very limited class" of errors which are not reviewable for harmless error under Crim.R. 52(A). These errors, now described as "structural errors," mandate a finding of per se prejudice, and automatic reversal. See Fisher at ¶ 9.

b. Exercising peremptory challenges

{¶ 14} The first step in our analysis requires us to identify the legal rules governing the use of peremptory challenges in the trial court. In a criminal proceeding, the use of peremptory challenges allows both the prosecution and the defense to secure a more fair and impartial jury by enabling them to remove jurors whom they perceive as biased, even if the jurors are not subject to a challenge for cause. "The right of peremptory challenge is not, of itself, a right to select, but a right to reject, jurors."

124 N.E.3d 444

United States v. Marchant & Colson , 12 Wheat 480, 482, 6 L.Ed. 700 (1827), quoted in Bohanno...