State v. Lewis R. McClain, 94-LW-2406

• Decision Date: 30 March 1994
• Docket Number: 48,94-LW-2406
• Parties: STATE OF OHIO, Plaintiff-Appellant v. LEWIS R. McCLAIN Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellant v. LEWIS R. McCLAIN Defendant-Appellant

No. 48.

94-LW-2406 (4th)

Court of Appeals of Ohio, Fourth District Vinton

March 30, 1994

COUNSEL FOR APPELLANT:^[1] Nicolette Dioguardi, 16 W. State Street, Athens, Ohio 45701.

COUNSEL FOR APPELLEE:^[2] David L. Kessler, Prosecuting Attorney, Vinton County Courthouse, McArthur, Ohio 45651.

DECISION

ABELE J.

This is an appeal from a judgment of conviction and sentence entered by the Vinton County Common Pleas Court. The jury found Lewis R. McClain, defendant below and appellant herein guilty of felonious assault, in violation of R.C. 2903.11 with a firearm specification.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE POLLING OF THE JURY REVEALED ONE INAUDIBLE RESPONSE FROM A JUROR AND ONE UNSURE RESPONSE FROM ANOTHER JUROR, AND THE COURT ACCEPTED ALL THE RESPONSES AS YES TO A GUILTY CONVICTION."

SECOND ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN, DURING THE COURSE OF THE TRIAL, JURORS AND WITNESSES ENGAGED IN VERBAL CONTACT, AND WHEN BROUGHT TO THE ATTENTION OF THE COURT, THE COURT FAILED TO PROPERLY INVESTIGATE THE ALLEGATIONS AND DENIED DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THESE IRREGULARITIES."

THIRD ASSIGNMENT OF ERROR:

"THE COURT COMMITTED PREJUDICIAL ERROR, THEREBY DENYING THE DEFENDANT A FAIR TRIAL, WHEN THE COURT REFUSED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF NEGLIGENT ASSAULT."

FOURTH ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL, AND THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT'S REQUEST TO SEPARATE TWO COMPLAINING WITNESSES FROM THE PROCEEDINGS."

FIFTH ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED A FAIR TRIAL AND THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT REFUSED TO ALLOW THE DEFENSE TO INQUIRE OF A COMPLAINING WITNESS ABOUT HIS OFFER TO ACCEPT MONETARY DAMAGES FROM THE DEFENDANT IN RETURN FOR THE VICTIMS' LESS AGGRESSIVE PURSUIT OF A CRIMINAL CONVICTION."

SIXTH ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED A FAIR TRIAL AND THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED OVER DEFENDANT'S OBJECTION, A POLICE OFFICER TO RENDER AN OPINION NOT WITHIN HIS EXPERTISE."

On April 26, 1991, Raymond Zuelke and his son Eric Zuelke each drove separately to a pre-arranged meeting place on a secluded side road, near a township road that intersects U.S Route 50 in Vinton County. When both arrived, they took Raymond's car to McArthur to eat dinner, leaving Eric's car parked on the shoulder of the road. Raymond and Eric Zuelke planned to go turkey hunting the next morning. When they returned to Eric's car, they took a brief walk along the road. They then prepared to spend the night together in Raymond's car.

Soon after both the men spread out their sleeping bags in Raymond's car, they heard several gunshots and someone saying "It's time for you to go. Get away from there. I told you to leave." The men heard approximately thirteen gunshots. Neither Raymond nor Eric knew where the shots were aimed. Eric entered his car and both men started to drive to the township road, with Eric in the lead. A pick-up truck started to follow closely. After all three vehicles turned onto the township road, the driver of the pick-up truck rammed the truck into Raymond's car from behind three times. Raymond heard a gunshot in between each of the rammings. All three vehicles then turned onto U.S. Route 50, heading towards McArthur.

In McArthur, Raymond drove his vehicle into a convenience store parking lot. The pick-up truck followed Raymond's car into the lot. Eric did not stop his vehicle. Raymond went into the convenience store and asked the clerk to call the police. Appellant got out of the truck and followed Raymond into the store. In the store, appellant and Raymond argued verbally and appellant swung his fist at Raymond. In a few moments, the police arrived. When Raymond returned to his car, he noticed two bullet holes in the rear of the car.

On March 26, 1992, the jury found appellant guilty of felonious assault with a firearm specification. Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts the court erred by accepting two jurors' equivocal answers to the poll conducted after the jury announced its verdict and by denying his motion for a new trial on this basis. Appellee counters that the two jurors answered clearly in the affirmative to the court's question.

The record reflects the following pertinent exchanges:

"THE COURT: Okay, Mr. Young, is the guilty verdict your verdict?

A. (inaudible)

* * *

THE COURT: Mr. Rossiter is the guilty verdict your verdict?

A. I reckon.

THE COURT: Is that yes, or no, sir?

A. I voted yes.

THE COURT: I'm sorry, I'm having difficulty hearing you?

MR. GOSLING (prosecutor): He said, I vote yes.

THE COURT: I'm sorry, okay. I'm just having trouble hearing you.

A. I beg your pardon?

THE COURT: I was just having difficulty hearing you. Your voice is a soft one.

ATTORNEY BOULGER [defense counsel]: Your Honor, I believe his words were, I wrote yes. I don't know that that constitutes a response to a question.

THE COURT: Okay. Was your answer a yes, or a no, Mr Rossiter? I couldn't hear you.

A. A yes. * * *"

Initially we note that appellant failed to object at trial to the court's acceptance of these jurors' responses. In fact, appellant's counsel repeated Rossiter's affirmative answer to the court. Thus, appellant may have waived any error if such is indeed found by this court. See State v. Hurt (Mar. 16, 1989), Hancock App. No. 5-87-24, unreported.

Because appellant failed to object at trial, we must employ the "plain error" analysis. Crim.R. 52(B), the "plain error" rule, states that although a defendant may have failed to raise a timely objection to an error affecting a substantial right, courts may notice the error. Crim.R. 52(B) provides:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

The Ohio Supreme Court has frequently limited the application of the plain error rule. In State v. Landrum (1990), 53 Ohio St.3d 197, 111, 559 N.E.2d 710, 717, the court quoted and followed State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, as follows:

"Notice of plain error under Crim R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."

(Emphasis added.)

The plain error rule should not be invoked unless, but for the error, the outcome of the trial would clearly have been otherwise. See State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332; State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452; State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351, certiorari denied (1976), 429 U.S. 932. We may invoke the plain error rule only if we find: (1) the court denied appellant a fair trial; (2) the circumstances in the instant case are exceptional; and (3) reversal of the judgment below is required to prevent a manifest miscarriage of justice.

Crim.R. 31(D) and R.C. 2945.77 provide for a poll of each of the jurors following the announcement of the verdict. The decision of whether to accept a juror's response.to a poll regarding the verdict rests largely within the discretion of the trial judge. State v. Worthy (Oct. 25, 1984), Franklin App. No. 84AP-390, unreported, quoting Annotation, Juror's Reluctant, Equivocal, or Conditional Assent to Verdict (1969), 25 A.L.R.3d 1149, 1151-52. In State v. Montgomery (1991), 61 Ohio St. 3d 410, 413, 575 N.E.2d 167, 171, the court followed established law on what constitutes an abuse of discretion:

"The term 'abuse of discretion' '* * * connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * * ' State v. Adams (1980), 62 Ohio St. 2d 151, [404 N.E.2d 144] * * *."

See, also, State v. Xie (1992), 62 Ohio St.3d 521, 585 N.E.2d 715; State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894.

When accepting a jury's verdict, the record must be sufficient to show a unanimous jury verdict, and the jurors must be given a full opportunity to disagree with the verdict, without coercion and undue pressure from the court. Emmert; State v. Fields (Ohio App. 1960), 176 N.E.2d 845; Hurt; State v. Staley (Jan. 21, 1987), Wayne App. No. 2189, unreported; State v. Brooks (Oct. 13, 1983), Cuyahoga App. No. 46102, unreported; State v. Moore (Apr. 11, 1980), Lucas App. No. L 79-165, unreported. A motion for new trial pursuant to Crim.R. 33(B) is also addressed to the sound discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54, paragraph one of the syllabus.

In the case sub judice, the court, defense counsel, and the prosecutor all accepted Young's response without comment. The entire record in the instant case is replete with the term "(inaudible)" substituted for text. Appellant suggests no possible answer other than "yes" from Young, and, considering the lack of reaction from the court and counsel, we cannot conceive of another possible response from Young. We note that when a proceeding has not been adequately preserved, counsel may invoke the procedure of App.R. 9(C) or 9(E) to reconstruct the record. State v Jells (1990), 55 Ohio St.3d 22, 32, 559 N.E.2d 464, 474; Stewart v. Stewart (June 12, 1991), Gallia App. No. 90 CA 10, unreported. When a party makes no attempt to reconstruct the substance of the allegedly prejudicial statements, an appellate court may hold that the party waived any error concerning...