[Cite as Green v. Myles, 2013-Ohio-371.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98251




                                  JOHNNIE R. GREEN
                                                   PLAINTIFF-APPELLANT

                                             vs.

                              ADRIAN MYLES, ET AL.
                                                   DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                     Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                     Case No. CV-757358

        BEFORE: S. Gallagher, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED: February 7, 2013
ATTORNEYS FOR APPELLANT

William A. Carlin
William P. Smith
Carlin & Carlin
29325 Chagrin Blvd.
Suite 305
Pepper Pike, OH 44122

ATTORNEYS FOR APPELLEES

Anne M. Markowski
Joseph H. Wantz
Williams, Moliterno & Scully Co.
2241 Pinnacle Parkway
Twinsburg, OH 44087
SEAN C. GALLAGHER, P.J.:

       {¶1} Plaintiff-appellant, Johnnie R. Green, appeals the judgment of the Cuyahoga

County Court of Common Pleas in favor of defendant-appellee, Adrian Myles. For the

reasons stated herein, we reverse the judgment and remand the matter for a new trial.

       {¶2} On June 2, 2010, Green, who was riding his bicycle through a crosswalk, was

involved in an accident with an automobile driven by Adrian Myles (“Myles”). As a

result of the accident, Green sustained a broken femur, which required the insertion of an

intramedullary rod into his leg.

       {¶3} Green filed this action alleging that Myles operated her vehicle in a reckless

and/or negligent manner.1 The matter proceeded to a jury trial.

       {¶4} The accident occurred on June 2, 2010, at a crosswalk on South Moreland

Avenue at Shaker Square. Green testified that he was riding a 26-inch mountain bike,

and when he got to the crosswalk, he saw a car coming and he stopped.                Though

reference was made to the vehicle making a rolling stop, Green stated: “I remember the

car pulling up and I took off, and at the same time, the car took off, as much as I can

remember.” He claimed that the car struck him on his left knee and he was thrown to the

street. He was in a lot of pain. On cross-examination, he testified that he did not

remember if the car stopped or not at the stop sign. He stated he saw the car approaching


       1
           Chuck Myles, the alleged owner of the vehicle, was also named as a defendant in the
action but was voluntarily dismissed.
the stop sign and that was all he remembered. He further testified that his bicycle was

not damaged at all in the accident. During the trial, the court denied Green’s request to

show the bicycle to the jury.

       {¶5} Testimony was also introduced from witnesses to the accident. One witness,

who was working inside a Dave’s Supermarket, claimed she observed that the man on the

bicycle had stopped and looked for traffic, that the vehicle had not stopped at the stop

sign, that the vehicle struck the man in the crosswalk, and that the vehicle kept going and

did not stop until onlookers getting off a nearby bus yelled. Another witness, who was at

Dave’s Supermarket and knows Green, stated that she saw a car knock Green off his

bicycle and that the car had not stopped at the stop sign. However, she did not see if

Green had stopped to look for traffic before entering the crosswalk.

       {¶6} Myles testified that she stopped at the stop sign and looked, but did not

observe anyone coming into the crosswalk. She stated that when she proceeded to go

forward, there was nobody inside the crosswalk. She claimed that Green then struck her

car on the right side of the fender. She testified she checked on her son, who is prone to

seizures, and then went to check on Green, who was visibly in pain. Photographs were

introduced depicting a dent to the vehicle above the front wheel well.           The dent

measured 35 inches from the ground.

       {¶7} The jury returned a verdict in favor of the defendant. This appeal followed.

       {¶8} Green raises three assignments of error for our review. His first assignment

of error provides as follows:
       The trial court erred by giving a jury instruction that was not agreed to by
       the parties and was in fact, a recitation of a theme and/or tag line from the
       appellee’s closing argument.

       {¶9} We review a trial court’s decision on jury instructions for an abuse of

discretion. Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 2012-Ohio-2383, 971 N.E.2d

1026, ¶ 62. “An abuse of discretion occurs when a decision is unreasonable, arbitrary, or

unconscionable.” State ex rel. Stiles v. School Emps. Retirement Sys., 102 Ohio St.3d

156, 2004-Ohio-2140, 807 N.E.2d 353, ¶ 13.

       {¶10} In this matter, the parties agreed to a set of written jury instructions. When

reading the instruction for “preponderance of the evidence” to the jury, the trial court

inserted additional language, stating as follows:

       A preponderance means evidence that is more probable, more persuasive, or
       * * * of a greater probative value. It is the quality of the evidence that
       should be weighed. Quality may or may not be identified with quantity.

       In other words, you know you sat and you listened, and I know that you
       know what makes sense and what doesn’t by now.

       But if somebody says something over and over and over again, that doesn’t
       mean that it’s got to be true. It simply means that somebody says
       something over and over and over again.

       So you have to consider all of the evidence and in determining whether an
       issue has been proved by a preponderance of the evidence you should
       consider all of it, regardless of who brought the evidence forward.

(Emphasis added.)

       {¶11} Plaintiff’s counsel objected to the trial court’s inclusion of the language that

“if somebody says something over and over and over again, that doesn’t mean that it’s got

to be true.” Green argues that this aspect of the instruction, which had not been agreed to
by the parties, was an expression that had been repeated throughout defense counsel’s

closing argument.       Green contends that this instruction effectively endorsed the

defendant’s argument.

       {¶12} R.C. 2315.01(A)(7) instructs that when the court reads written instructions

to the jury, “the court shall not orally qualify, modify, or in any manner explain the charge

or instruction to the jury.” We recognize that not every instance in which a trial court

fails to read verbatim the written jury instructions results in reversible error. However,

when a court fails to adhere to the mandates of R.C. 2315.01(A)(7), challenges of bias or

prejudice may arise.

       {¶13} Here, although the trial court made similar statements during its opening

instruction to the jury, the statements were not included in the written jury instructions

that were agreed to by the parties, and plaintiff’s counsel timely objected to the trial

court’s interjection of a theme that was repeated in defense counsel’s closing arguments.

Under these circumstances, when coupled with the limits placed on plaintiff’s counsel

during closing argument, an appearance of bias was created that prejudiced Green’s right

to a fair trial. Therefore, Green’s first assignment of error is sustained.

       {¶14} Green’s second assignment of error provides as follows:

       The trial court erred by denying the appellant the right to conduct his
       rebuttal summation of closing arguments resulting in an unequal allotment
       of time that prejudicially affected the appellant.

       {¶15} It is within a trial court’s sound discretion to limit the duration of closing

arguments, as long as the time given is reasonable under the circumstances of the case
and of such length as not to impair the right of argument or to deny a full and complete

defense. Braeunig v. Russell, 170 Ohio St. 444, 166 N.E.2d 240 (1960), citing 53

American Jurisprudence, Section 461, at 364. The decision of the trial court will not be

interfered with in the absence of a clear showing of its abuse to the prejudice of the

substantial rights of the complaining party. Id.

       {¶16} Green claims that the trial court denied him the opportunity to make a

rebuttal summation during closing argument. The record reflects that the trial court

allotted each side 15 minutes for closing argument. Plaintiff’s counsel asked to split his

argument, with 10 minutes allocated before defendant’s closing argument and 5 minutes

for rebuttal, to which the trial court agreed. However, after plaintiff’s counsel concluded

his initial argument, the trial court indicated that counsel had used his entire 15 minutes.

Plaintiff’s counsel argued that he had used only 13 minutes, and the staff attorney

indicated “he might have two minutes.” However, the trial court concluded that all 15

minutes had been used. Thus, no rebuttal time was afforded to plaintiff’s counsel.

       {¶17} We find that in this instance, the trial court prejudiced Green’s substantial

right to a fair trial. Although the trial court initially indicated it would allow both sides

15 minutes for argument, it refused to allow Green’s counsel to present a rebuttal despite

the staff attorney’s representation that two minutes remained.        This occurred in the

presence of the jury. Under the circumstances herein, we find the court’s refusal to

afford Green the opportunity to present a rebuttal argument gave an appearance of
impropriety and deprived the defendant of a trial that was fundamentally fair. Green’s

second assignment of error is sustained.

        {¶18} Green’s third assignment of error provides as follows:

        The trial court erred by refusing to admit into evidence the bicycle on which
        the appellant was riding at the time of the accident.

        {¶19} The admission of evidence lies within the broad discretion of the trial court.

 Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834 N.E.2d 323,

¶ 20.    A reviewing court will uphold an evidentiary decision absent an abuse of

discretion that has affected the substantial rights of the adverse party or is inconsistent

with substantial justice. Beard at ¶ 20.

        {¶20} “All relevant evidence is admissible, except as otherwise provided by

[federal and state law.]”   Evid.R. 402.    Evidence is considered relevant if it has “any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.”

Evid.R. 401.     Nevertheless, even relevant evidence “is not admissible if its probative

value is substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury.” Evid.R. 403(A). Further, relevant evidence “may be

excluded if its probative value is substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence.”    Evid.R. 403(B).

        {¶21} Green claims that the trial court abused its discretion by refusing to allow

the jury to observe the bicycle, which he testified was in substantially similar condition as

it was on the day of the collision. He argues that the admission of the bicycle would
have confirmed his version of events because it was free of damage and would have

shown the jury that it could not have made the dent in Myles’s vehicle. The trial court

determined that the bicycle was inadmissible because it was more prejudicial than

probative and the court had concerns with the chain of custody.

       {¶22}   The record reflects that Green testified his knee made contact with the

vehicle and his bicycle did not touch the car.          Further, Green offered unrefuted

testimony that his bicycle did not suffer any damage.            The jury heard evidence

establishing that Green was on a 26-inch bicycle and that the vehicle’s dent was 35 inches

from the ground. The dimensions of the bicycle were not disputed. Thus, although the

condition of the bicycle was relevant to the case, the admission of the bicycle arguably

would have been a needless presentation of evidence.      We also recognize that plaintiff’s

counsel had ample opportunity to cross-examine the defendant regarding allegations

concerning the dent.

       {¶23}   Though we may have decided differently from the trial court, upon the

record before us, we are unable to conclude that the exclusion of the bicycle affected the

substantial rights of Green or is inconsistent with substantial justice. Green’s third

assignment of error is overruled.

       {¶24} Judgment reversed; case remanded for a new trial.

       This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellees costs herein taxed.
       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
