State v. Rhines

Decision Date27 July 2012
Docket NumberT.C. NO. 10CR809,C.A. CASE NO. 24417
Citation2012 Ohio 3393
PartiesSTATE OF OHIO, Plaintiff-Appellee v. ANTWAN RHINES, Defendant-Appellant
CourtOhio Court of Appeals

(Criminal appeal from

Common Pleas Court)

OPINION

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.

Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio

45459

Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Antwan Rhines appeals his conviction and sentence foraggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third degree; three counts of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), all felonies of the fourth degree; one count of receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fourth degree; and one count of failure to stop after an accident, in violation of R.C. 4549.02, a misdemeanor of the first degree. Rhines filed a timely notice of appeal with this Court on January 3, 2011.

{¶ 2} The basis for the instant appeal occurred on December 12, 2008, when a stolen Chevrolet Malibu driven by Rhines crashed into two vehicles, a Toyota Sienna minivan and Pontiac Grand Prix, after running a red light at the intersection of South Main and Washington Streets in downtown Dayton, Ohio. The driver of the Grand Prix, Dwayne Bullock, died as a result of injuries sustained in the accident. The remaining three passengers: Bullock's wife, Dara; Bullock's brother, Joseph Bullock; and Joseph's fiancee (now wife), Amanda, sustained serious injuries requiring long term medical treatment. The driver of the Sienna, Tammy Dolphin, did not suffer any injuries in the collision.

{¶ 3} After crashing into the two vehicles, Rhines fled the scene of the crash on foot and was apprehended by Dayton Police Sergeant Mark Ponichtera at the intersection of 5th Street and Main, a short distance from the accident. Sgt. Ponichtera testified that Rhines was walking with a pronounced limp when he was apprehended. Rhines also met the description of an individual observed climbing out of the stolen Malibu and fleeing the scene of the crash.

{¶ 4} On May 5, 2010, Rhines was indicted for aggravated vehicular homicide, three counts of vehicular assault, one count of receiving stolen property, and one count offailure to stop after an accident. At his arraignment on May 25, 2010, Rhines pled not guilty to all of the counts in the indictment. After a five day jury trial beginning on October 18, 2010, and ending on October 22, 2010, Rhines was found guilty of all counts in the indictment. On December 30, 2010, the trial court sentenced Rhines to five years in prison for the aggravated vehicular homicide, eighteen months in prison for each count of vehicular assault, eighteen months in prison for receiving stolen property, each of those counts to run consecutive to one another, for an aggregate term of eleven years in prison. The trial court sentenced Rhines to six months in prison for failure to stop after an accident, but ordered the sentence to run concurrent with the other counts. The trial court also suspended Rhines' drivers license for twenty-five years.

{¶ 5} It is from this judgment that Rhines now appeals.

{¶ 6} Rhines' first assignment of error is as follows:

{¶ 7} "JUROR MISCONDUCT OCCURRED DURING JURY DELIBERATIONS TO THE DETRIMENT OF DEFENDANT, AND AS SUCH, DEFENDANT WAS DENIED A FAIR TRIAL."

{¶ 8} In his first assignment, Rhines contends that the trial court erred by allowing members of the jury to takes notes during the trial. Rhines further argues that the trial court erred when it allowed the jurors to use their notes as substantive evidence during deliberations. Rhines asserts that this occurred because the trial court failed to instruct the jury regarding the use of their notes during deliberations.

{¶ 9} A trial court has the discretion to either permit or prohibit note taking by jurors. State v. Waddell, 75 Ohio St.3d 163, 1996-Ohio-100, 661 N.E.2d 1043. Rhinescomplains that the jurors should not have been allowed to take notes, citing general concerns over the potential for distracting jurors from concentrating on witnesses and the evidence. Rhines argues that the facts presented at trial were relatively uncomplicated. Thus, Rhines asserts that it was unnecessary for the jurors to take notes. Rhines, however, failed to object to the trial court's decision to permit note-taking by jurors at any point during trial. By failing to object at trial, Rhines has waived all but "plain error." State v. Waddell, 75 Ohio St.3d at 166. Plain error does not exist unless but for the error the outcome of the trial clearly would have been otherwise. State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913 (1990); State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

{¶ 10} Initially, we note that there is no requirement that a case be deemed "complicated" before jurors are permitted to take notes. Nevertheless, we note that the record establishes that over twenty witnesses testified during the course of the five-day trial. In our view, the large number of witnesses who testified coupled with the length of the trial supports the trial court's decision to permit the jury to take notes, and the court did not abuse its discretion in this regard. Additionally, Rhines has failed to establish that but for the trial court's decision to permit note taking by the jurors, the outcome of the trial would have been any different.

{¶ 11} We further note that, contrary to Rhines' assertion in his merit brief, the trial court did properly instruct the jury regarding note taking and its use of said notes during deliberations. During its preliminary instructions to the jury immediately prior to the beginning of the trial, the trial court instructed the jury as follows:

The Court: During this trial the court will permit the jurors to takenotes. If you desire to do so, you may do that. No juror is required to take notes. The taking of notes is entirely a matter of personal choice for each juror. The jurors who choose not to take notes must not be influenced by those who do take notes. The fact that the notes taken by a juror support his or her recollection in no way makes his or her memory more reliable than that of other jurors who do not take notes.
Notes are merely a memory aid, and must not take precedence over your independent memory of the facts. Do not let the taking of notes divert your attention from what is being said or is happening at the courtroom during the trial. Some persons believe that taking notes is not helpful because it may distract a person's attention and interfere with hearing all the evidence. All notes are confidential for the consideration of that juror only. Each note taker will leave his or her notes on the chair during breaks and at the end of the day will be collected by the Bailiff. When deliberations take place you will be permitted to take your notes into the jury room and use them as a memory aid. All notes will be returned to the Bailiff for destruction at the time that the jury is discharged.

{¶ 12} The preliminary instruction provided by the trial court mirrors the language set forth in Ohio Jury Instruction-CR 401.19 regarding note taking by jurors during trial. Accordingly, the trial court properly instructed the jury regarding its ability to take notes during the trial.

{¶ 13} Lastly, Rhines asserts that the jurors improperly used their notes during deliberations by sharing the contents of their notes with one another. Thus, Rhines argues that the trial court erred when it overruled his motion for new trial based upon his claim of juror misconduct with respect to the alleged sharing of notes taken during trial. With the exception of his unsupported allegation that jurors improperly shared and compared their notes during deliberations, Rhines did not adduce any evidence in the record which establishes that the jurors who took notes shared the contents of their notes with other jurors. We also note that Rhines failed to attach any affidavits to his motion for a new trial which support his contention that the jurors acted improperly. Simply put, there is no evidence of how the jurors used their notes during deliberations, if, in fact, any notes were even taken. Accordingly, the trial court did not err when it permitted the jurors to take notes during the trial after providing the jury with the proper preliminary instruction taken verbatim from OJI-CR 401.19.

{¶ 14} Rhines' first assignment of error is overruled.

{¶ 15} Rhines' second assignment of error is as follows:

{¶ 16} "THE TRIAL COURT PREJUDICED DEFENDANT THROUGH ITS IMPROPER USE OF THE DYNAMITE/HOWARD CHARGE TO THE JURY."

{¶ 17} In his second assignment, Rhines argues that the trial court erred when it gave a dynamite/Howard charge to the jury after learning that the jury was deadlocked. State v. Howard, 42 Ohio St.3d 18, 537 N.E. 2d 188 (1989). Specifically, Rhines asserts that the trial court violated his right to a fair trial by coercing an otherwise deadlocked jury into rendering a guilty verdict.

{¶ 18} The record indicates that prior to giving the dynamite charge to the jury, the trial court asked both parties if they agreed with the court's decision to provide the supplemental Howard instruction to the jury. Both parties agreed on the record, and the trial court subsequently gave the dynamite charge to the jury in open court. Neither the State nor the defense objected to the instruction as provided by the trial court to the jury.

{¶ 19} By acquiescing to the trial court's proposal to submit the dynamite charge to the jury, Rhines waived any error made by the trial court regarding the charge and cannot now complain that he was prejudiced. Furthermore, we note that the jury had been deliberating for over eleven hours when the instruction was given, hardly premature...

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