[Cite as State v. Courie, 2015-Ohio-2894.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2014-A-0043
        - vs -                                  :

CHARLES C. COURIE, JR.,                         :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 523.

Judgment: Affirmed in part, reversed in part, and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, P.O. Box 293, Jefferson,
OH 44047 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Charles C. Courie, Jr., appeals from the judgment entry of the Ashtabula

County Court of Common Pleas, sentencing him, following a jury trial, to four years

imprisonment for unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A).

Mr. Courie contends the trial court abused its discretion in failing to sustain challenges

for cause to two jurors, David Holdson and Jerry Sipan. He further contends the trial

court erred in failing to instruct the jury on accident. Finding merit in the contention that
failing to sustain the challenge to Mr. Sipan was error, we affirm in part, reverse in part,

and remand.

       {¶2}   The following facts are taken from the transcript of trial.

       {¶3}   Heather Young lives across the street from Nicole Fugate, and her minor

daughter, T.F. Ms. Young’s daughter is the same age as T.F., and the girls spend time

together at Ms. Young’s house. Ms. Young testified that Mr. Courie is a friend of her

father, that she has known him her whole life, and that she sees him daily. She denied

having a sexual relationship with him. T.F. testified she knew Mr. Courie from seeing

him at Ms. Young’s.

       {¶4}   On the weekend of May 26 and 27, 2012, Ms. Young and T.F., then aged

14, went camping at Kenisee Campgrounds in Geneva, Ohio.                    Mr. Courie does

maintenance at the camp, and Ms. Young and T.F. were to stay at his apartment. They

toured the camp, and ate hamburgers. Ms. Young testified that Mr. Courie was with

them, and that he drank heavily. Ms. Young also drank, and admitted giving T.F. a wine

cooler.

       {¶5}   Mr. Courie stated that both Ms. Young and T.F. told him T.F. was 18 years

old. Ms. Young denied this, but another camper, Joshua Vincent, testified that Ms.

Young told him and other campers that T.F. was 18, and could drink alcohol, and that

Mr. Courie was within hearing distance when this was said. T.F. denied ever telling

anyone her age that evening.




                                              2
      {¶6}   Eventually the party returned to Mr. Courie’s apartment, where Ms. Young

and T.F. were to sleep on a fold out couch in the living room. They watched television.

Mr. Courie gave both Ms. Young and T.F. massages. T.F. testified this made her very

uncomfortable.

      {¶7}   Ms. Young fell asleep. Mr. Courie testified that he retired to his bedroom

and that after a few minutes, someone entered, and began performing oral sex on him.

He testified that he and Ms. Young had a longstanding sexual relationship, and he

thought it was her. Mr. Courie is blind in one eye, and has poor vision otherwise. He

testified that after a moment, Ms. Young began pounding on the door, and he realized

he was in bed with T.F. He testified he never intended to have sex with a minor.

      {¶8}   T.F. testified that after Ms. Young fell asleep, Mr. Courie began touching

“her private area,” and that she went to his bedroom, and unsuccessfully tried to lock

the door. She testified that Mr. Courie entered, locked the door, turned off the lights,

and jumped into bed, thereafter performing various sexual acts on her. Ms. Young

began pounding on the door, and T.F. escaped. T.F. testified Mr. Courie told Ms.

Young “nothing happened,” and “it was a mistake.”

      {¶9}   Detective Michael Rose is an employee of the Ashtabula County

Children’s Services Board, commissioned by the Ashtabula County Sheriff.             He

interviewed the parties.   He further testified that while no semen was found in the

analysis of T.F.’s rape kit, Mr. Courie’s DNA was found in her underwear.




                                           3
        {¶10} Mr. Courie was indicted August 23, 2012. At his arraignment, he pled not

guilty. Jury trial commenced April 7, 2014. April 9, 2014, the jury found Mr. Courie

guilty of unlawful sexual conduct with a minor, having been convicted previously of

sexual battery.1

        {¶11} Sentencing hearing went forward June 25, 2014; the trial court filed its

judgment entry of sentence two days later. Notice of appeal was timely filed July 16,

2014, Mr. Courie assigning three errors. The first two read:

        {¶12} “[1.] The trial court erred to the prejudice of the Appellant by failing to

dismiss for cause Juror David Holdson, in violation of Rule 11(C)(2)(a) of the Ohio

Rules of Criminal Procedure, and the Appellant’s Rights under the Sixth Amendment to

the U.S. Constitution, Article I, Sections 10 and 16, of the Ohio Constitution, and Ohio

Revised Code Section 2945.25.

        {¶13} “[2.] The trial court erred to the prejudice of the Appellant by failing to

dismiss for cause Juror Jerry Sipan, in violation of Rule 11(C)(2)(a) of the Ohio Rules of

Criminal Procedure, and the Appellant’s Rights under the Sixth Amendment to the U.S.

Constitution, Article I, Sections 10 and 16, of the Ohio Constitution, and Ohio Revised

Code Section 2945.25.”

        {¶14} We consider these assignments of error together.

        {¶15} During voir dire, Mr. Holdson stated he and Nicholas Iarocci, the

Ashtabula County Prosecutor, are good friends, and that their daughters are college

roommates.       He and Mr. Iarocci serve together on a board, and exchange weekly

emails and communications regarding the board’s business. Nevertheless, he stated

he could be fair, and make his decisions based on the law and evidence. This case

1. The parties had stipulated to Mr. Courie’s prior conviction.


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was not tried by Mr. Iarocci himself, but by Assistant Prosecutor Susan Thomas.

Defense counsel challenged Mr. Holdson for cause, which challenge the trial court

denied. Mr. Holdson was removed by a peremptory challenge.

      {¶16} Mr. Sipan is a retired state highway patroller, well acquainted with the trial

court, and Ms. Thomas. He stated he has extensive ties to local police agencies. His

wife is an adult probation officer for Ashtabula County. He stated that he and Detective

Rose, the lead investigator in this case, are friends, and Detective Rose agreed with

this, on the record, in front of the jury pool. However, Mr. Sipan agreed with defense

counsel that the police make mistakes, and stated he would be fair to both sides.

Defense counsel challenged Mr. Sipan for cause, which challenge the trial court denied.

He was thereafter removed by peremptory challenge.

      {¶17} Eventually, Mr. Courie used all of his peremptory challenges. Defense

counsel moved the trial court to grant two extra peremptory challenges to each party.

The state opposed this motion, and the trial court denied it. This occurred prior to the

empanelling of the jury.

      {¶18} A trial court’s ruling on a challenge for cause is reviewed for abuse of

discretion. State v. Freshwater, 11th Dist. Lake No. 2002-L-041, 2004-Ohio-384, ¶19.

Regarding this standard, we recall the term “abuse of discretion” is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record.

State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be

found when the trial court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176

Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)




                                            5
          {¶19} If a challenge for cause is denied, thus requiring a defendant to exhaust

his or her peremptory challenges prior to the empanelling of a jury, there may be

prejudice. State v. Kirkbride, 5th Dist. Muskingum No. C.T. 93-15, 1994 Ohio App.

LEXIS 1846, *8-9 (April 1, 1994).

          {¶20} R.C. 2945.25 provides, in pertinent part:

          {¶21} “A person called as a juror in a criminal case may be challenged for the

following causes:

          {¶22} “* * *

          {¶23} “(B) That he is possessed of a state of mind evincing enmity or bias

toward the defendant or the state; but no person summoned as a juror shall be

disqualified by reason of a previously formed or expressed opinion with reference to the

guilt or innocence of the accused, if the court is satisfied, from examination of the juror

or from other evidence, that he will render an impartial verdict according to the law and

the evidence submitted to the jury at the trial;

          {¶24} “* * *

          {¶25} “(O) That he otherwise is unsuitable for any other cause to serve as a

juror.”

          {¶26} See also R.C. 2313.17(B)(9); Crim.R. 24(C)(9) and (14).

          {¶27} In this case, Mr. Courie contends the close personal relationship between

Mr. Holdson and Mr. Iarocci, the county prosecutor, rendered the former suspect as a

juror. We respectfully disagree. First, Mr. Iarocci did not appear in this case, except

through his assistant, Ms. Thomas.         There is nothing in the record indicating Mr.

Holdson knows her. Further, there is nothing in the record indicating Mr. Holdson’s




                                              6
connection with Mr. Iarocci has anything to do with the latter’s office.       The record

indicates it is personal, and related to the board on which they serve together. Mr.

Holdson affirmed he could and would be fair and impartial.

       {¶28} The first assignment of error lacks merit.

       {¶29} Regarding the challenge to Mr. Sipan, Mr. Courie relies heavily on the

Fifth District’s decision in Kirkbride, supra.      In that case, the trial court denied a

challenge for cause to a prospective juror who was a senior member of the State

Highway Patrol. Id. at *8-9. The prospective juror was still actively employed, and

worked regularly with the arresting officers in the case at bar. Id. at *9-14. The Fifth

District held that the challenge for cause should have been upheld pursuant to R.C.

2945.25(B), evidently on the basis that the prospective juror’s answers in voir dire

indicated a bias toward the state. Id. at *14-15.

       {¶30} In this case, the state differentiates Kirkbride, emphasizing that Mr. Sipan

was retired from the State Highway Patrol, and had no further active connection to

police work.

       {¶31} We agree with the state that Kirkbride is inapplicable. The decision of the

Fifth District was grounded on the fact that the juror challenged continued to have a

close working relationship with the arresting officers. Mr. Sipan did not. However, the

record in this case indicates that Mr. Sipan’s admitted friendship with Detective Rose,

the lead investigator and a principal witness in this case, was both personal, and

founded on their former professional relations. Mr. Sipan’s wife remained an active

probation officer for the county. The personal element to the relationship between Mr.

Sipan and Detective Rose seems problematic. Under the circumstances, we find it was




                                             7
error for the trial court to deny the challenge for cause, pursuant to R.C. 2945.25(O) and

Crim.R. 24(C)(14).    While we do not question Mr. Sipan’s probity, the relationship

between the prospective juror and the state’s witness was simply too close.

       {¶32} The dissent seems to imply our decision casts aspersions on the police;

that we are saying that performing the vital and dangerous duties of an officer of the

peace renders a person suspect as a juror in criminal cases. This is obviously untrue,

and certainly not our finding. Rather, this decision is premised on the fact that an

admitted close, personal friendship existed between a juror, and a principal witness.

There are few, if any, more precious rights we Americans have, under the constitution,

than the right to trial by jury. Any defendant, civil or criminal, might look askance upon

his or her fate being decided, in part, by a personal friend of one of the opposing party’s

principal witnesses – even if that friendship was properly set aside by the juror.

       {¶33} The second assignment of error has merit.

       {¶34} Mr. Courie’s third assignment of error reads:

       {¶35} “The trial court erred to the prejudice of the Appellant by failing to give the

jury an accident instruction when properly supported by the Record, in violation of the

Defendant’s right to a fair trial guaranteed by the Sixth Amendment to the U.S.

Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.”

       {¶36} During the course of trial, defense counsel made both written and oral

motions for an instruction on accident.      The motions were based on Mr. Courie’s

testimony that he had been lead to believe T.F. was 18 years old, and his belief that his

sexual partner was Ms. Young.




                                             8
       {¶37} “Accident is an unintentional act that denies a culpable mental state.”

State v. Smiley, 8th Dist. Cuyahoga No.            93853, 2010-Ohio-4349, ¶13. In State v.

Brady, 48 Ohio App.3d 41, 42 (11th Dist.1988), this court stated:

       {¶38} “It is prejudicial error in a criminal case to refuse to give a requested

charge which is pertinent to the case, states the law correctly, and is not covered by the

general charge, or by another special charge which is given. Cincinnati v. Epperson

(1969), 20 Ohio St. 2d 59, * * *; State v. Nelson (1973), 36 Ohio St. 2d 79, * * *,

overruled in part on other grounds in State v. Fanning (1982), 1 Ohio St. 3d 19, * * *.

       {¶39} “‘Where accident has been raised as a defense and has record support,

the judge need only explain the elements of accident and instruct that proof of accident

negates guilt (* * *).’ (Emphasis added.) State v. Rivers (1977), 50 Ohio App. 2d 129, *

* *, paragraph six of the syllabus.” (Emphasis sic.)

       {¶40} Mr. Courie was convicted of unlawful sexual conduct with a minor, R.C.

2907.04., which provides, in pertinent part:

       {¶41} “(A) No person who is eighteen years of age or older shall engage in

sexual conduct with another, who is not the spouse of the offender, when the offender

knows the other person is thirteen years of age or older but less than sixteen years of

age, or the offender is reckless in that regard.”

       {¶42} Thus, the culpable mental states for the crime are knowledge, or

recklessness. In State v. Whitacre, 11th Dist. Trumbull No. 2013-T-0045, 2014-Ohio-

1369, ¶11, we stated:




                                               9
       {¶43} “R.C. 2901.22(C) states the definition of ‘recklessly’:

       {¶44} “A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause

a certain result or is likely to be of a certain nature. A person is reckless with respect to

circumstances when, with heedless indifference to the consequences, he perversely

disregards a known risk that such circumstances are likely to exist.”

       {¶45} Mr. Courie contends he was entitled to an instruction on accident because

the record, via his own testimony, provides support for his contention that he believed

T.F. was at least 18 years old, and, that in any case, he believed his sexual partner was

Ms. Young. In overruling the motions for an accident instruction, the learned trial court

stated that the general instruction on recklessness was sufficient to cover these issues:

i.e., if the jury accepted Mr. Courie’s testimony, it could not find he had perversely

disregarded circumstances likely to exist. R.C. 2901.22(C).

       {¶46} We agree with the trial court. An instruction on accident is only required if

the general charge, or another special charge does not cover the circumstances

allegedly giving rise to the accident. Brady, supra, at 42. As the trial court stated, if the

jury accepted Mr. Courie’s testimony, it could not find he acted recklessly.

       {¶47} The third assignment of error lacks merit.

       {¶48} The judgment of the Ashtabula County Court of Common Pleas is affirmed

in part, and reversed in part, and this matter is remanded for further proceedings

consistent with this opinion.




                                             10
DIANE V. GRENDELL, J., concurs in Judgment Only,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.


                           ______________________



CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

       {¶49} The majority finds merit in appellant’s second assignment of error, under

which appellant argues the trial court erred in denying a defense challenge against

potential juror Sipan for bias due to his connection, as a former state highway

patrolman, with the lead investigator for the state.      Appellant asserts he suffered

prejudice because he exhausted his peremptory challenges after the trial court denied

the challenge against Sipan for cause. For the following reasons, I disagree and would

affirm the trial court.

       {¶50} Preliminarily, I wish to emphasize an appellate court’s limited standard of

review on a trial court’s denial of a challenge for cause. To wit, “[o]n a challenge for

cause, ‘[t]he ultimate question is whether the “juror sw[ore] that he could set aside any

opinion he might hold and decide the case on the evidence, and [whether] the juror’s

protestation of impartiality [should be] believed.”’” State v. Perez, 124 Ohio St.3d 122,

2009-Ohio-6179, ¶140, quoting White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005),

quoting Patton v. Yount, 467 U.S. 1025, 1035 (1984). “‘Deference must be paid to the

trial judge who sees and hears the juror.’” (Emphasis added). State v. Tyler, 50 Ohio

St.3d 24, 30 (1990), quoting Wainwright v. Witt, 469 U.S. 412, 426 (1985). This means

an appellate court may not second-guess a trial court’s determination that a juror is able

to hear a case and apply the law impartially. State v. Wilson, 29 Ohio St.2d 203, 211



                                           11
(1972). When a defendant challenges a prospective juror for cause, a trial court’s ruling

“will not be disturbed on appeal unless it is manifestly arbitrary and unsupported by

substantial testimony, so as to constitute an abuse of discretion.” State v. Williams, 79

Ohio St.3d 1, 8 (1997).

       {¶51} In this case, the trial judge’s decision denying appellant’s challenge for

cause was fundamentally reasonable and based upon potential juror Sipan’s

persuasive, express assurances that he was fair and would weigh the evidence with

impartiality. Given the trial court’s broad discretion, the circumstances of this case, as

well as this court’s limited standard of review, it is clear that the majority is overstepping

its legal authority in concluding appellant was prejudiced by the trial court’s ruling.

       {¶52} During voir dire, potential juror Sipan stated he is a retired state highway

patrolman; he further stated he has “associations” with “a lot of police departments,” the

trial judge, as well as the prosecutor’s office. Sipan also disclosed his friendship with

Detective Mike Rose, the lead investigator in the case. Despite his stated connections

and background, however, Sipan expressly stated he could be fair and impartial. He

also recognized that police officers can make mistakes. Sipan stated he was “a pretty

fair individual” who could give appellant “a fair shake.” And, when Sipan was asked by

defense counsel, on a scale of one to 10, 10 being most guilty, how guilty did Sipan

think appellant was prior to trial, he responded “[r]ight now he’s not guilty until proven[.]”

       {¶53} Despite Sipan’s statements that he could be fair and impartial, the majority

concludes the trial court erred to appellant’s prejudice by not dismissing him for cause.

The majority maintains that Sipan was unsuitable to serve as a juror on the panel

because “the relationship between the prospective juror and [Detective Rose] was




                                              12
simply too close.” See R.C. 2945.25(O) and Crim.R. 24(C)(14) (a person called as a

juror in a criminal matter may be challenged because he or she is “otherwise unsuitable

for any other cause to serve as a juror.”)

       {¶54} There is nothing in either Crim.R. 24(C) or R.C. 2945.25 which requires

the removal, for cause, of a retired law enforcement officer from a jury in a criminal

case. There is also nothing in the transcript to indicate that juror Sipan could not be fair

and impartial despite his law enforcement background or connection to Detective Rose.

To the contrary, Sipan considered himself a fair individual and declared he could be fair

and impartial towards appellant. Although the majority seizes upon Sipan’s friendship

with the lead investigator as a basis for its conclusion, Sipan stated he would have no

trouble fairly weighing Detective Rose’s testimony. Furthermore, there is nothing in the

record to indicate potential juror Sipan had any current or would have any prospective

professional affiliations with the detective that might potentially slant his impartiality. In

short, friendship or professional acquaintanceship neither necessarily nor automatically

divests an individual of his or her analytic objectivity.

       {¶55} A prospective juror need not be disqualified merely because he or she is a

former police officer or a close friend or relative of a police officer. See State v. Wolfe,

4th Dist. Gallia No. 95CA04, 1996 Ohio App. LEXIS 2605, *14, *20-21 (June 17, 1996).

Rather, the trial judge must determine, on a case-by-case basis, whether the juror can

be fair and impartial. See State v. Murphy, 91 Ohio St.3d 516, 525 (2001). Under the

circumstances of this case, there was no indication that potential juror Sipan could not

be fair and impartial. To the contrary, he stated, several times, he was impartial and his

connection would not affect his ability to be fair. And there was no reason for the court




                                              13
to doubt Sipan’s credibility on this issue. In reversing the trial judge’s denial of the

challenge for cause, the majority has failed to give proper deference to the judge’s

decision and is, in effect, second-guessing the reasonable exercise of his discretion.

       {¶56} One final point requires attention.      The majority asserts my position

“seems to” implicitly indict the majority analysis as, in effect, anti-police. This dissent

merely challenges the judicial wisdom of undermining the sound exercise of a trial

judge’s discretion. The facts of this case involve a former police officer, but my dissent

in no way suggests the majority has any hidden ax to grind against the police. The

majority’s strange, if not completely baseless, interpretation of this dissent says more

about its interpretative projections than it does about the legal or jurisprudential content

of my analysis.

       {¶57} I would therefore hold the trial court’s decision to deny appellant’s

challenge for cause was not so manifestly arbitrary and unreasonable as to constitute

an abuse of discretion.

       {¶58} I therefore dissent.




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