[Cite as State v. Walters, 2014-Ohio-5297.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                     No. 14AP-278
v.                                                  :           (C.P.C. No. 13CR-05-2829)

Nathan T. Walters,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                   Rendered on November 26, 2014


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Todd W. Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Defendant-appellant, Nathan T. Walters, appeals the March 7, 2014
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas pursuant to a jury verdict finding appellant guilty of felonious assault in violation of
R.C. 2903.11, a felony of the second degree. For the following reasons, we affirm the
judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} On May 24, 2013, the state filed an indictment charging appellant with a
single count of felonious assault in violation of R.C. 2903.11, a felony of the second degree.
On January 29, 2014, following a jury trial, appellant was found guilty of felonious assault
as indicted. On March 7, 2014, the trial court entered judgment imposing a sentence of
three years' incarceration.
No. 14AP-278                                                                               2


II. Assignment of Error
       {¶ 3} Appellant appeals assigning the following single error for our review:
                APPELLANT WAS DENIED OF HIS RIGHT TO BE
                PRESENT AND TO THE PRESENCE AND ASSISTANCE OF
                HIS COUNSEL DURING A CRITICAL STAGE OF HIS JURY
                TRIAL, AND HIS RIGHT TO DUE PROCESS AND A
                FUNDAMENTALLY FAIR JURY TRIAL AS REQUIRED BY
                THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
                TO THE UNITED STATES CONSTITUTION AND ARTICLE
                ONE SECTIONS FIVE, TEN AND SIXTEEN OF THE OHIO
                CONSTITUTION AND OHIO RULE OF CRIMINAL
                PROCEDURE 43(a).

       {¶ 4} In his assignment of error, appellant asserts that the trial court erred by
answering questions from the jury during its deliberations without the presence of
appellant. The state responds that, by not objecting on this ground at trial, appellant has
forfeited all but plain error. Further, the state contends that, because appellant's counsel
was present and participating in all proceedings, including the discussion of the proper
response to the jury's questions, appellant cannot show prejudice resulting from his
absence.
       {¶ 5} Here, after the jury retired to the jury room and began their deliberations,
they sent questions to the court, asking for clarification regarding the term "knowingly"
and the applicability of self-defense. Outside of the presence of the jury and appellant, the
trial court discussed how to answer the questions with counsel for both parties. Following
discussion and without objection from either party, the trial court sent a written response
that essentially told the jurors to rely upon the evidence and the previously given
instructions.
       {¶ 6} "A defendant has a fundamental right to be present at all critical stages of
his criminal trial." State v. Jordan, 10th Dist. No. 14AP-01, 2014-Ohio-3208, ¶ 19, citing
State v. Hill, 73 Ohio St.3d 433, 444 (1995), citing Crim.R. 43(A) and the Ohio
Constitution, Article I, Section 10. The United States Supreme Court has held that "a
defendant is guaranteed the right to be present at any stage of the criminal proceeding
that is critical to its outcome if his presence would contribute to the fairness of the
procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Crim.R. 43(A)(1) provides that
the "defendant must be physically present at every stage of the criminal proceeding and
No. 14AP-278                                                                               3


trial, including the impaneling of the jury, the return of the verdict, and the imposition of
sentence, except as otherwise provided by these rules."
       {¶ 7} To establish a violation of the right to be present, the defendant must show
that his presence at the proceeding had a reasonably substantial relationship to the
opportunity to defend against the charge. State v. Campbell, 90 Ohio St.3d 320, 346
(2000), quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934) ("The question is
whether 'his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.' "). To the contrary, a defendant does not have
the right to be present when such presence would not confer any potential benefit to
defending against the charge. Campbell at 346.
       {¶ 8} Appellant relies on State v. Shenoda, 10th Dist. No. 01AP-1409, 2002-Ohio-
4296, to support his contention that, because he had a right to be present at all critical
stages of his trial, it was error for there to be communication between the court and jury
outside his presence. In Shenoda, during its deliberations following trial, the jury sent
several written questions to the trial court judge. In response, the judge entered the jury
room with the court reporter and provided the jury with an oral summary of the
testimony of a witness and reinstructed the jury. The defendant, his counsel, and counsel
for the state were not present when the judge spoke to the jury. Upon review, we found
plain error, stating that, "even if defense counsel was present and failed to object or
agreed to the procedure employed, the trial court's actions in communicating with the
jury without counsel or defendant present is so fraught with the possibility of prejudice
that it constitutes plain error." Id. at ¶ 20.
       {¶ 9} Here, unlike in Shenoda, appellant's counsel was present and even
conferred with the trial court regarding the questions from the jury. The record reflects
that the trial court did not personally answer the questions outside of the presence of
appellant but, instead, sent the court's bailiff to submit the written responses to the jury.
Additionally, the trial court did not provide a summary of testimony to the jury or
reinstruct them, but merely told the jury to refer to the previously given instructions. As a
result, our holding in Shenoda is inapplicable to this case. Further, the questions at issue
here were legal in nature. Appellant's presence, as a layperson, did not have a reasonably
No. 14AP-278                                                                                 4


substantial relationship to the opportunity to defend against the charge where his lawyer
was present to advise on the legal questions.
       {¶ 10} Accordingly, we overrule appellant's single assignment of error.
III. Disposition
       {¶ 11} Having overruled appellant's single assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                                  O'GRADY, J., concurs.
                               KLATT, J., concurs separately.

KLATT, J., concurring separately.
       {¶ 12} I agree with the majority decision to affirm the trial court's judgment.
However, I reach this conclusion for a different reason.
       {¶ 13} As noted in the majority decision, appellant's counsel participated in the
discussion with the trial court concerning how the trial court should respond to the jury's
question regarding the term "knowingly" and the applicability of self-defense. Following
that discussion, and without objection from either party, the trial court sent a written
response that essentially told the jurors to rely upon the evidence and the previously given
instructions. Because there was no objection, appellant has forfeited all but plain error.
       {¶ 14} Appellant makes no attempt to show prejudice.          Nor do I discern any
prejudice. The instructions previously given to the jury were not supplemented in any
way. Appellant advances no argument as to how his presence would have contributed to
the discussion. Under these circumstances, I do not find plain error. Therefore, I would
affirm the trial court's judgment on this basis.
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