[Cite as State v. Flowers, 2012-Ohio-3783.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.     25841

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID J. FLOWERS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 10 08 2283

                                 DECISION AND JOURNAL ENTRY

Dated: August 22, 2012



        CARR, Judge.

        {¶1}     Appellant, David Flowers, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     This case arises out of the arrest of David Flowers on August 12, 2010, after he

was involved in a violent confrontation with his girlfriend.

        {¶3}     On August 26, 2010, the Summit County Grand Jury indicted Flowers on one

count of felonious assault, two counts of possession of cocaine, two counts of trafficking in

cocaine, four counts of domestic violence, and one count of violating a protection order. Both

counts of possession of cocaine contained forfeiture specifications. On September 16, 2010, a

supplemental indictment was filed adding a repeat violent offender specification to the felonious

assault charge. On October 27, 2010, a second supplemental indictment was filed charging
                                                2


Flowers with one count of kidnapping with a repeat violent offender specification. Flowers

pleaded not guilty to the aforementioned charges and the case proceeded to jury trial.

         {¶4}   Prior to the commencement of trial, the State moved to dismiss two of the

domestic violence counts contained in the original indictment, as well as the count of violating a

protection order. The trial court granted the motion. Also prior to trial, Flowers moved to

bifurcate the consideration of the repeat violent offender specification attached to the felonious

assault charge, to allow the trial court, rather than the jury, to determine whether Flowers was a

repeat violent offender. The trial court granted this motion as well.      The jury subsequently

found Flowers guilty of felonious assault, two counts of possession of cocaine, two counts of

trafficking in cocaine, and one count of domestic violence. After the hearing, the trial court

found that Flowers was a repeat violent offender. The trial court declined to sentence Flowers on

the domestic violence charge as the court found that said charge merged with the felonious

assault charge. The trial court further found that the two counts of possession of cocaine merged

with the two counts of trafficking in cocaine. The trial court sentenced Flowers to a total of 13

years imprisonment. Flowers was further ordered to forfeit $111. The sentencing entry was

issued on February 7, 2011.

         {¶5}   Flowers has appealed. Flowers initially filed a brief raising four assignments of

error.   Flowers subsequently filed a motion to amend his brief and withdraw his fourth

assignment of error. The motion is granted at this time.

                                                II.

                                 ASSIGNMENT OF ERROR I

         FLOWERS’ CONVICTIONS SHOULD BE REVERSED BECAUSE HE WAS
         DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL
         COUNSEL FAILED TO MOVE THE COURT TO SUPPRESS A STATEMENT
         FLOWERS MADE IN RESPONSE TO A POLICE QUESTION AFTER
                                                 3


       FLOWERS WAS IN CUSTODY, BUT BEFORE HE WAS GIVEN HIS
       MIRANDA RIGHTS.

       {¶6}    In his first assignment of error, Flowers argues that trial counsel rendered

ineffective assistance of counsel by not moving to suppress a statement Flowers made to police

after he was taken into custody. This Court disagrees.

       {¶7}    In support of his first assignment of error, Flowers argues that trial counsel should

have filed a motion to suppress statements he made to police officers before he was Mirandized.

Flowers argues that, after he had been taken into custody, the arresting officer asked him a

question that could have been expected to elicit an incriminating response. Specifically, Officer

Mallard asked Flowers if the room in which he was arrested was his room. Flowers answered

this question in the affirmative. Flowers argues that his statement was highly prejudicial because

it linked him to the contents of the room, which included drugs and cash. In his merit brief,

Flowers argued, “Granted, the statement was admissible under the Rules of Evidence as an

admission by a party opponent, see Evid.R. 801(D)(2), but that does not mean that Flowers’ un-

Mirandized statement ought not to have been suppressed or stricken as a violation of his

Constitutional rights.”

       {¶8}    In order to prevail on a claim of ineffective assistance of counsel, Flowers must

show that “counsel’s performance fell below an objective standard of reasonableness and that

prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686. Thus, a two-prong test is necessary to examine such claims.

First, Flowers must show that counsel’s performance was objectively deficient by producing
                                                 4


evidence that counsel acted unreasonably. State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing

Strickland, 466 U.S. at 687. Second, Flowers must demonstrate that but for counsel’s errors,

there is a reasonable probability that the results of the trial would have been different. Keith, 79

Ohio St.3d at 534. If a defendant fails to satisfy either prong of the Strickland test, his claim of

ineffective assistance of counsel must fail and the court need not address the other prong.

Strickland, 466 U.S. at 688.

       {¶9}     “[T]he failure to file a motion to suppress which possibly could have been

granted and implicated matters critical to the defense can constitute ineffective assistance of

counsel, if such failure prejudices the defendant.” State v. Pitts, 9th Dist. No. 20976, 2002-Ohio-

6291, ¶ 88. In order to demonstrate that trial counsel’s performance was deficient, a defendant

must establish that a valid basis existed to suppress the evidence. State v. Adams, 103 Ohio St.3d

508, 2004-Ohio-5845, ¶ 35.

       {¶10} As noted above, this case arises of out a dispute between Flowers and his

girlfriend, Erica Elmore. Elmore testified that she and Flowers began dating in the summer of

2009. By July 2010, the couple was staying in a house located at 910 Bye Street in Akron.

Flowers and Elmore were living with Flowers’ brother, Mickey Fry, who owned the home. On

July 2, 2010, Elmore reported to police that Flowers had punched her in the face. Elmore

testified that the dispute occurred because Flowers accused her of stealing drugs. Within two

weeks of the incident, Elmore and Flowers had reconciled to the extent that they continued living

together at the Bye Street house. Elmore testified that while she and Flowers were drinking with

Mickey Fry at the house on August 11, 2010, Flowers assaulted her again. Flowers had become

angry when Elmore called her mom to ask if she could come pick her up and take her home.

Elmore testified that Flowers knocked the phone out of her hand and proceeded to drag her
                                               5


outside. Elmore further testified that Flowers hit and choked her, and bit her fingers and face.

Flowers would not allow Elmore to leave and he assaulted her multiple times over the course of

several hours. When Flowers fell asleep on the morning of August 12, 2010, Elmore took his

phone, left the house, and called 911. Elmore ran to the corner of Peckham St. and Madison

Ave. where she met the police and EMS. Before she was transported to the hospital by EMS,

Elmore told police that Flowers was in the house on Bye Street.

       {¶11} Before she was transported to the hospital, Elmore spoke with Officer Marlon

Mallard of the Akron Police Department. Officer Mallard testified it was clear that Elmore had

sustained injuries. Elmore indicated that she wanted to press charges and she filled out a victim

impact statement. Elmore told the officers that Flowers was living at the house at 910 Bye

Street. Officer Mallard then drove to the house with Officer Looney. When Officer Mallard

knocked loudly on the front door, he did not receive a response. He then met Officer Looney on

the side of the house where they found the side door to be “unlocked and slightly open.” The

officers announced themselves as the Akron Police and again did not receive a response. The

officers then entered the house, continuing to announce their presence. Officer Mallard heard

“some rustling upstairs.” Mickey Fry then came down the stairs and stated that he lived in the

house. The officers asked whether Flowers was in the house. When Fry stated that Flowers was

not home, Officer Mallard asked if he and Officer Looney could look upstairs. Fry granted the

officers permission and accompanied them up the steps.

       {¶12} The officers arrived on the second floor to find three bedrooms. When Officer

Mallard went into the first room, he saw money scattered on the floor along with plastic

packaging containing a white substance. Officer Mallard testified the white substance appeared

to be cocaine packaged for sale. Officer Mallard exited the first bedroom to find that Officer
                                               6


Looney had finished checking the second bedroom. As the officers turned their attention to the

third bedroom, they noticed that the door was closed. Officer Mallard asked Fry about the room

and Fry indicated that it was his bedroom. Officer Mallard entered the third bedroom and found

Flowers hiding in the closet. Officer Mallard then took Flowers into custody. At trial, Officer

Mallard was asked if Flowers made any statements or utterances when he was taken into

custody. Officer Mallard replied, “I asked him whether or not the room that I found all the drugs

in -- I said – I asked him whether or not that was his room. And he said yes. And that was while

we were walking to my cruiser.” Officer Mallard placed Flowers in the cruiser and then assisted

in photographing the bedroom where the drugs and money were discovered. Officer Mallard

then drove Flowers to the police station, where he read Flowers his Miranda rights. During the

ensuing interrogation, Officer Mallard asked Flowers about the cocaine that had been found in

the bedroom. Flowers responded by saying that the cocaine did not belong to his brother.

       {¶13} Several photographs of the bedroom containing the drugs and money were

introduced as exhibits at trial. Elmore testified that she and Flowers shared the room together.

Elmore further testified that the money and drugs found in the room belonged to Flowers.

Elmore indicated that Flowers had the drugs because he sold them. Portions of Flowers’ jail

calls were also played at trial. During one call, Flowers states “They went in my room and seen

little items and picked them up too. Ah man, that made me look so bad.”

       {¶14} Flowers testified in his own defense at trial. Flowers testified that he did not own

the drugs discovered in the bedroom and he did not know how they got there. While Flowers

denied that the drugs were present in the room on morning of the day he was arrested, he

admitted to sleeping with Elmore in the room where the drugs were found.
                                                7


       {¶15} A review of the trial transcript reveals that the result of the trial would not have

been different had defense counsel filed a motion to suppress Flowers’ statement to Officer

Mallard, as independent evidence was presented which linked Flowers to the bedroom in

question. Elmore testified that she and Flowers shared the room where the drugs were found,

and that the drugs in the room belonged to Flowers. After Flowers had been informed of his

Miranda rights, he told Officer Mallard that the drugs did not belong to his brother. Flowers

himself testified that he had slept with Elmore in the room where the drugs were found. In light

of this evidence, Flowers cannot prevail on his argument that but for the admission of his

statement to Officer Mallard, the outcome of trial would have been different. Flowers’ first

assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       FLOWERS WAS DENIED HIS CONSTITUTIONAL RIGHTS WHEN THE
       TRIAL COURT ALLOWED INADMISSIBLE HEARSAY TO BE ADMITTED
       IN FLOWERS’ TRIAL.

       {¶16} In his second assignment of error, Flowers argues that the trial court erred in

allowing inadmissible hearsay. This Court disagrees.

       {¶17} In his merit brief, Flowers argues that the trial court admitted hearsay on multiple

occasions over the objection of defense counsel. Specifically, Flowers argues that even after

Erica Elmore testified that Flowers had assaulted and injured her, the trial court allowed her

mother, Nina Elmore, to offer cumulative testimony about her daughter’s injuries. Flowers also

argues the trial court should not have permitted the State to elicit testimony regarding Elmore’s

injuries from Officer Mallard, Dr. Jno Disch, the emergency room physician who treated Elmore,

and Dennis Shumaker, the paramedic who first treated Elmore. Flowers further contends that

Officer Mallard should not have been permitted to testify regarding the contents of court records.
                                                8


Flowers asserts that these statements, “even if they were not hearsay, were more than cumulative

and repetitive; they were gratuitous and unnecessary.” Finally, Flowers argues that the State

should not have been permitted to introduce into evidence Shumaker’s “run report” and Elmore’s

emergency room records, both of which contained hearsay statements.

       {¶18} Evid.R. 801(C) defines “hearsay” as “a statement, other than made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” As a general rule, hearsay is not admissible. Evid.R. 802. The hearsay rule

does not apply, however, when an out-of-court statement is offered for a purpose other than the

truth of the matter asserted. State v. Lewis, 22 Ohio St.2d 125, 132 (1970).

Excited Utterances

       {¶19} Evid.R 803 provides numerous exceptions to the hearsay rule. Evid.R. 803(2)

defines an excited utterance as “[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or condition.” “To be

admissible under Evid.R 803(2) as an excited utterance, a statement must concern ‘some

occurrence startling enough to produce a nervous excitement in the declarant,’ which occurrence

the declarant had an opportunity to observe, and must be made ‘before there had been time for

such nervous excitement to lose a domination over his reflective faculties. * * *’” State v.

Huertas, 51 Ohio St.3d 22, 31 (1990), quoting Potter v. Baker, 162 Ohio St. 488 (1955),

paragraph two of the syllabus. Admitting a declaration as an excited utterance is not prohibited

by questioning which: “(1) is neither coercive nor leading, (2) facilitates the declarant’s

expression of what is already the natural focus of the declarant’s thoughts, and (3) does not

destroy the domination of the nervous excitement over the declarant’s reflective faculties.” State

v. Wallace, 37 Ohio St.3d 87, 93 (1988).
                                                9


       {¶20} At trial, Nina Elmore testified regarding a phone call she received from her

daughter on July 2, 2010. Nina testified that Erica was upset and that she was not speaking in

her normal voice. Erica’s voice was “shaky” and she was crying. During the call, Erica

indicated that she and Flowers had been fighting. Nina got upset and offered to give Erica a ride.

Nina then traveled with her father to pick up Erica. When they arrived, Nina observed that Erica

had bruises under her eye and that her cheeks were red. Later that summer, Nina received

another call from Erica. Erica was crying and sounded upset. Erica again asked her mother to

give her a ride. Nina then heard “thumping around” and she heard Erica “screaming” and

“hollering.” Nina testified that she heard Erica screaming “[h]elp, help, help.” Nina testified

that upon hearing these statements, she was in a state of panic. These statements were excited

utterances and admissible under Evid.R. 803(2). On both occasions, Erica was in a state of

duress because she was in the midst of a violent altercation. Nina testified that Erica’s voice

suggested that she was startled and in a state of unrest. Moreover, in both instances, Erica

indicated that she was hoping to escape each respective situation. Thus, Nina’s testimony

regarding the phone calls did not contain inadmissible hearsay. See State v. Jackson, 2d Dist. No

18881, 2002 WL 398655 (Mar. 15, 2002) (recognizing that exclamations made over the phone

by a daughter to her mother that were made immediately after daughter had been punched in the

mouth by her boyfriend at the supermarket were admissible under both the excited utterance and

present sense impression exceptions to the hearsay rule).

       {¶21} As noted above, Officer Mallard testified that he immediately noticed that Elmore

had sustained visible injuries upon arriving at the corner of Peckham St. and Madison Ave. on

August 12, 2012.      Photographs taken at the scene showed that Elmore was experiencing

significant swelling around her eyes and nose; that her face was bruised; that she had several
                                               10


open wounds on her hands, and that she had suffered severe abrasions on her neck. Officer

Mallard testified that when he encountered Elmore, she was “visibly upset” and “crying.” When

asked whether, as part of responding to the call, he asked Elmore what happened, Officer

Mallard answered in the affirmative. Officer Mallard further testified that Elmore informed him

that she suffered her injuries because her boyfriend had choked and bitten her. Assuming,

arguendo, that Elmore’s statement to Officer Mallard regarding the source of her injuries was

offered for the truth of the matter asserted, it was admissible under the excited utterance

exception. Elmore had run two blocks from the Bye Street house to the corner of Peckham and

Madison in order to escape an attack that had lasted several hours. During the attack she had

sustained significant injuries and was prevented from leaving. Under circumstances where it is

apparent that a victim is “injured, bleeding, and emotionally distraught[,]” the victim’s

declaration will be admissible when it is not “the product of reflective thought.” Akron v.

Hutton, 9th Dist. No. 22425, 2005-Ohio-3300, ¶ 12. Here, the admission of Elmore’s statement

regarding the source of her injuries was proper given that it was made “while [she] was under the

stress of excitement caused” by a startling event. Evid.R. 803(2); State v. Campbell, 9th Dist.

No. 24688, 2010-Ohio-2573, ¶ 30.

Public Records

       {¶22} Officer Mallard also testified as to the contents of certain court records involving

Flowers. Specifically, Officer Mallard identified a journal entry indicating that Flowers had

been convicted of domestic violence in 2005, and a complaint and journal entry indicating that

Flowers had been convicted of domestic violence in 1999. The journal entries in question were

generated by the Summit County Court of Common Pleas and the Akron Municipal Court,
                                                11


respectively, and their contents were admissible pursuant to Evid.R. 803(8)(a) as public records.

State v. Gwen, 9th Dist. No. 25218, 2011-Ohio-1512, ¶ 42.



Statements for Purposes of Medical Diagnoses

       {¶23} Another exception to the hearsay rule is set forth in Evid.R. 803(4), which states

that a hearsay statement is admissible if the statement is “made for purposes of medical diagnosis

or treatment and describing medical history, or past or present symptoms, pain, or sensations, or

the inceptions or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.” “[T]his Court has consistently held that a description of the

encounter and even identification of the perpetrator are within the exception, as statements made

for purposes of diagnosis or treatment.” State v. Stahl, 9th Dist. No. 22261, 2005-Ohio-1137, ¶

15, citing State v. Eagle, 9th Dist. No. 04CA0003, 2004-Ohio-3255, ¶ 16; State v. Wade, 9th

Dist. No. 02CA0076-M, 2003-Ohio-2351, ¶ 6.

       {¶24} Dr. Disch testified that part of his treatment of Erica Elmore in the emergency

room after the August 11 incident involved obtaining a narrative of what caused her to need

medical attention. Dr. Disch testified that he obtained this narrative for the purpose of “medical

diagnosis and treatment.” When Dr. Disch questioned Elmore regarding the source of her

injuries, Elmore stated that her boyfriend had caused the injuries. Such an inquiry is particularly

relevant when a patient has suffered a bite wound. This statement was clearly made for the

purpose of medical diagnosis and was admissible pursuant to the hearsay exception set forth in

Evid.R. 803(4).

       {¶25} Dennis Shumaker testified that on August 12, 2010, he was working as a

paramedic and was called to the corner of Peckham St. and Madison Ave in Akron. Upon
                                                   12


arriving, Shumaker immediately noticed that Elmore had blood on her shirt and had sustained

injuries to her face. The “run report” that Shumaker drafted pursuant to the incident was

introduced as an exhibit at trial. Shumaker testified that as part of the report, he obtained “for

medical purposes” information about what happened to the injured individual.               Shumaker

testified that Elmore told him that she had been “punched, slapped, choked, [and] bitten” by her

boyfriend. This statement was also admissible as a hearsay exception set forth in Evid.R. 803(4)

because it was made for the purposes of diagnosis so that Elmore’s injuries could be properly

treated.

Business Records

           {¶26} Evid.R. 803(6) governs the admissibility of business records as an exception to

the hearsay rule. Evid.R. 803(6) specifically excludes:

           A memorandum, report, record, or data compilation, in any form, of acts, events,
           or conditions, made at or near the time by, or from information transmitted by, a
           person with knowledge, if kept in the course of a regularly conducted business
           activity, and if it was the regular practice of that business activity to make the
           memorandum, report, record, or data compilation, all as shown by the testimony
           of the custodian or other qualified witness or as provided by Rule 901(B)(10),
           unless the source of information or the method or circumstances of preparation
           indicate lack of trustworthiness. The term “business” as used in this paragraph
           includes business, institution, association, profession, occupation, and calling of
           every kind, whether or not conducted for profit.

Medical records which are kept in the ordinary course of business may ordinarily be admitted at

trial despite their hearsay status. State v. Tolbert, 9th Dist. No. 24958, 2010-Ohio-2864, ¶ 11-12.

           {¶27} Shumaker’s paramedic report, as well as a modified version of Elmore’s

emergency room records containing Dr. Disch’s physician notes, were introduced as exhibits at

trial. These records were created in the regular course of diagnosing and treating medical issues.

As such, these documents were admissible pursuant to Evid.R. 803(6) as each constituted records

of regularly conducted activity. While Flowers argues on appeal that these documents contained
                                                13


hearsay-within-hearsay statements, he has not identified specific statements within the

documents that he finds objectionable. As such, this Court “will not create an argument on his

behalf.” In re G.E.S., 9th Dist. No. 23963, 2008-Ohio-2671, ¶ 53.

       {¶28} We note that Flowers’ assignment of error is framed in terms of the purported

admission of hearsay evidence. To the extent that Flowers suggests in his brief that the trial

court admitted cumulative evidence at trial, Flowers’ argument is without merit as he has failed

to demonstrate prejudice. In order to prevail on an argument made pursuant to Evid.R. 403(B),

an appellant must demonstrate that he suffered prejudice because the probative value of a piece

of evidence was outweighed by the needless presentation of cumulative evidence. Flowers has

failed to demonstrate prejudice in this case because there was overwhelming evidence, including

the testimony of Elmore herself, that Elmore suffered her injuries at the hands of Flowers.

       {¶29} It follows that Flowers’ second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED FLOWERS
       A FAIR TRIAL WHEN IT DENIED FLOWERS’ REPEATED MOTIONS FOR
       A MISTRIAL.

       {¶30} In his third assignment of error, Flowers argues that the trial court abused its

discretion when it denied his motions for a mistrial. This Court disagrees.

       {¶31} In support of his final assignment of error, Flowers argues that his right to a fair

trial was adversely affected when two jurors saw him in handcuffs outside the courtroom.

Flowers contends the trial court abused its discretion in denying his repeated motions for a

mistrial on that basis. Flowers further emphasizes that the trial court neither issued a curative

instruction, nor conducted a voir dire examination of the jurors who saw Flowers in handcuffs.
                                                  14


       {¶32} This Court reviews the trial court’s denial of a motion for a mistrial for an abuse

of discretion. State v. Patel, 9th Dist. No. 24024, 2008-Ohio-4692, ¶ 46. An abuse of discretion

is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Granting a motion

for a mistrial is appropriate when the defendant’s right to a fair trial is no longer possible. State

v. Franklin, 62 Ohio St.3d 118, 127 (1991).

       {¶33} The United States Supreme Court has held that a criminal defendant cannot be

compelled to stand trial while dressed in prison attire. Estelle v. Williams, 425 U.S. 501, 512

(1976). However, “courts have refused to embrace a mechanical rule vitiating any conviction,

regardless of the circumstances, where the accused appeared before the jury in prison garb.

Instead, they have recognized that the particular evil proscribed is compelling a defendant,

against his will, to be tried in jail attire.” Id. at 507. Similarly, absent a particularized need, the

usual practice is for the defendant to appear in court free of restraints because the presence of

restraints tends to erode the presumption of innocence that our system accords to criminal

defendants. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 79. “When a jury’s view of

the defendant in restraints is ‘brief, inadvertent, and outside the courtroom,’ there is but a slight

risk of prejudice.” State v. Halsell, 9th Dist. No. 24464, 2009-Ohio-4166, ¶ 7, quoting State v.

Kidder, 32 Ohio St.3d 279, 286 (1987).

       {¶34} Here, after a break in trial during the State’s case-in-chief, defense counsel stated

on the record that Flowers had told him that two jurors had seen Flowers in handcuffs. Defense

counsel then asked the trial court for “any instructions with respect to that issue.” When the trial
                                                15


judge asked Flowers when the jurors might have seen him, Flowers responded, “We were in the

hallway. I was instructed to step to the side, but I was handcuffed.” Flowers continued, “It was

Monday. I don’t know what time it was. I know I [saw] two different people in the hallways.

And I was instructed to step to the side or they were instructed to leave and walk away while I

was handcuffed.” When the trial judge responded by noting that the deputies who serve the

court take extensive measures to prevent the jury from knowing that a defendant is being held in

custody, Flowers responded, “Yes, he did. I give him credit.”

       {¶35} The trial judge then asked defense counsel if he wanted the court to provide some

sort of curative instruction to the jury. Defense counsel stated that he was “not certain” if he

wanted a curative instruction because it might highlight the issue. Instead, defense counsel

stated, “in the event that this would be something that would raise to the level or a mistrial, we

would ask for a declaration thereof.” The trial judge then asked the court’s deputy if he recalled

an instance where members of the jury may have seen Flowers.             Deputy Dave Andrews

responded, “I believe it was during the first break on Monday after the jury was seated, we were

escorting Mr. Flowers up out of the holding area of that hallway. And he is correct, the tall

gentleman here on the end. Your Honor, I would only say that he had a – only a fleeting passing

view as he walked across the end of the hallway. We stopped, the hallway was cleared. I think I

had a conversation with his counselor to make sure that there was nobody else around.” Deputy

Andrews further stated that the juror got “maybe a one-second view [of Flowers], if at all.”

       {¶36} The trial judge then denied the motion for a mistrial, but informed the parties that

the option remained open to “inquire of those specific jurors who Mr. Flowers thinks may have

seen him” and then issue a specific curative instruction. The trial judge noted that he was not

inclined to give such an instruction because it might highlight the issue in the minds of those
                                                 16


jurors, but indicated that he was willing to do so if defense counsel so desired. Defense counsel

then stated that he would discuss with Flowers whether they wanted a curative instruction.

Defense counsel renewed his motion for a mistrial at the end of the State’s case-in-chief, at the

end of the defense’s case, and again immediately prior to sentencing.

       {¶37} In this case, the trial court did not abuse its discretion by denying Flowers’ motion

for a mistrial. Deputy Andrews stated on the record that a juror had merely “a fleeting passing

view” of Flowers in the hallway that lasted “maybe one second.” Flowers himself admitted that

the deputy took measures to ensure that the jury did not know Flowers was being kept in

custody. Because the two jurors’ view of Flowers was extremely brief, inadvertent, and outside

the courtroom, Flowers’ right to a fair trial was not substantially jeopardized and the trial court

did not abuse its discretion by denying the motion for a mistrial. Moreover, while the trial court

indicated that it was willing inquire of the jurors in question and issue a curative instruction, its

ultimate decision not to do so emanated from a concern that highlighting the issue could only be

prejudicial to Flowers. Under these circumstances, Flowers’ third assignment of error must be

overruled.

                                                III.

       {¶38} Flowers’ assignments of error are overruled.           The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                17


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
DICKINSON, J.
CONCUR


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
