State v. Perry, 2002-1792.

• Citation: 101 Ohio St.3d 118,802 NE 2d 643
• Decision Date: 11 February 2004
• Docket Number: No. 2002-1792.,2002-1792.
• Parties: THE STATE OF OHIO, APPELLANT, v. PERRY, APPELLEE.
• Court: United States State Supreme Court of Ohio

101 Ohio St.3d 118

2004-Ohio-297

802 NE 2d 643

2004-Ohio-297

THE STATE OF OHIO, APPELLANT, v. PERRY, APPELLEE.

No. 2002-1792.

Supreme Court of Ohio.

Submitted October 8, 2003.

Decided February 11, 2004.

Ron O'Brien, Franklin County Prosecuting Attorney, and Laura M. Rayce, Assistant Prosecuting Attorney, for appellant.

Joseph E. Scott Co., L.P.A., and Joseph E. Scott, for appellee.

David L. Strait, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.

MOYER, C.J.

{¶ 1} The question presented in this case is whether the failure of the trial court to maintain written jury instructions with the "papers of the case" in violation of R.C. 2945.10(G) is cause for the automatic reversal of a defendant's conviction.

I

{¶ 2} On February 9, 2001, the Franklin County Grand Jury indicted defendant-appellee, Michael L. Perry, for kidnapping, cunnilingus rape, vaginal rape, and gross sexual imposition. Appellee pleaded not guilty and was tried in the Franklin County Court of Common Pleas. At the conclusion of the trial, the jury found Perry not guilty of vaginal rape but was unable to reach a verdict on the remaining charges. Perry was thereafter retried before a second jury on the charges of kidnapping, cunnilingus rape, and gross sexual imposition. The jury returned a guilty verdict on the first two charges and an acquittal on the third.

{¶ 3} Perry appealed his convictions to the Tenth District Court of Appeals, asserting six assignments of error. In his sixth assignment of error, Perry alleged that "the trial court committed prejudicial error by failing to make written jury instructions provided to the jury a permanent part of the record for use on appeal." The court of appeals, without expressly determining whether such error affected the substantial rights of the defendant, concluded that the failure of the trial court to maintain such instructions with the "papers of the case" was cause for reversal. Having concluded that Perry's sixth assignment of error was dispositive, the court of appeals declared the remaining assignments of error moot and remanded the cause for a new trial.

{¶ 4} On September 16, 2002, the state filed a motion to certify a conflict, arguing that the judgment of the court of appeals conflicted with six decisions from the Eight District Court of Appeals and one decision from the Fifth District Court of Appeals. In its motion, the state argued that these decisions stood for the proposition that a reviewing court may reverse a conviction for failure to preserve the written jury instructions only when such error prejudices the defendant. The Tenth District Court of Appeals concluded that no conflict existed and denied the motion.

{¶ 5} The cause is now before this court upon the allowance of a discretionary appeal.

II

{¶ 6} The sole issue in this appeal is whether the failure of the trial court to maintain written jury instructions with the "papers of the case" is cause for reversal regardless of whether such error affected the substantial rights of the defendant. In determining whether to reverse a conviction based on an alleged error, our threshold inquiry is "whether there was an `error'—i.e., a `deviation from a legal rule.'" State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano (1993), 507 U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508. Perry asserts that the trial court deviated from a legal rule set forth in R.C. 2945.10(G) because the court failed to maintain the written jury instructions with the record. R.C. 2945.10(G), which governs the order of proceedings at trial, provides:

{¶ 7} "The court, after the argument is concluded and before proceeding with other business, shall forthwith charge the jury. Such charge shall be reduced to writing by the court if either party requests it before the argument to the jury is commenced. Such charge, or other charge or instruction provided for in this section, when so written and given, shall not be orally qualified, modified, or explained to the jury by the court. Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court and remain on file with the papers of the case." (Emphasis added.)

{¶ 8} We conclude that R.C. 2945.10(G) clearly and unambiguously requires the trial court to maintain the written jury instructions with the "papers of the case" and that failure to do so constitutes a "deviation from a legal rule." Given that the trial court's failure to maintain such instructions with the record is error, we therefore consider whether the error is cause for automatic reversal. Our analysis of this issue requires a discussion of the circumstances under which a reviewing court may reverse a conviction based on an error that occurred during the trial court proceeding.

A

{¶ 9} Crim.R. 52 affords appellate courts limited power to correct errors that occurred during the trial court proceeding. Crim.R. 52 provides:

{¶ 10} "(A) Harmless error

{¶ 11} "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.

{¶ 12} "(B) Plain error

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

{¶ 14} Crim.R. 52(B) thus distinguishes between errors to which a defendant objected at trial and errors that a defendant failed to raise at trial. If the defendant failed to raise an error affecting substantial rights at trial, an appellate court reviews the error under the plain-error standard in Crim.R. 52(B). Under that rule, the defendant bears the burden of demonstrating that a plain error affected his substantial rights. See Olano, 507 U.S. at 734, 113 S.Ct. 1770, 123 L.Ed.2d 508.¹ Even if the defendant satisfies this burden, an appellate court has discretion to disregard the error and should correct it only to "`prevent a manifest miscarriage of justice.'" State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.

{¶ 15} Alternatively, if the defendant has objected to an error in the trial court, an appellate court reviews the error under the "harmless error" standard in Crim.R. 52(A)—"a standard significantly more favorable to the defendant." United States v. Curbelo (C.A.4, 2003), 343 F.3d 273, 286. Under that rule, the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant. Olano, 507 U.S. at 741, 113 S.Ct. 1770, 123 L.Ed.2d 508; State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 136 ("Once the defendant objected to the error, the burden shifted to the state to demonstrate an absence of prejudice"). This burden-shifting device "is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error `does not affect substantial rights,' (emphasis added), Rule 52(b) authorizes no remedy unless the error does `affect substantial rights.'" (Emphasis added.) Olano, 507 U.S. at 734-735, 113 S.Ct. 1770, 123 L.Ed.2d 508. An appellate court must reverse a conviction if the government does not satisfy this burden; unlike Crim.R. 52(B), Crim.R. 52(A) is mandatory, not permissive, and thus affords the appellate court no discretion to disregard the error. Id. at 735-736, 113 S.Ct. 1770, 123 L.Ed.2d 508.

{¶ 16} In the instant case, Perry did not object to the failure of the trial court to maintain the written jury instructions with the "papers of the case." Hence, an appellate court would typically review the error under the plain-error analysis in Crim.R. 52(B). Perry asserts, however, that this error should give rise to a conclusive presumption that the error affected his substantial rights, thereby requiring an appellate court to correct the error—and thus reverse his conviction—without regard to the evidence in the case. To that end, Perry directs us to the limited class of constitutional defects, called "structural errors," that defy harmless-error analysis and are cause for automatic reversal. We therefore recur to the "substantial body of case law that has delineated the parameters of the structural error doctrine." Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 10.

B

{¶ 17} In our most recent pronouncement on the structural-error doctrine, we explained that structural errors are constitutional defects that "`defy analysis by "harmless error" standards' because they `affect the framework within which the trial proceeds, rather than simply being an error in the trial process itself.'" Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Arizona v. Fulminante (1991), 499 U.S. 279, 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Such errors permeate "the entire conduct of the trial from beginning to end" so that the trial cannot "`reliably serve its function as a vehicle for determination of guilt or innocence.'" Fulminante, 499 U.S. at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302, quoting Rose v. Clark (1986), 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. We have thus recognized that if "`the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis.'" State v. Hill (2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274, quoting Rose, 478 U.S. at 579, 106 S.Ct. 3101, 92 L.Ed.2d 460.

{¶ 18} Consistent with the presumption that errors are not "structural," the United States Supreme Court "has found an error to be `structural,' and thus subject to automatic reversal, only in a `very limited class of cases.' Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, ...