[Cite as State v. Marshall, 2013-Ohio-2978.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2012 AP 11 0065
JEFF L. MARSHALL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Tuscarawas County Court
                                               of Common Pleas, Case No.
                                               2011 CR 12 0290


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        July 9, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RYAN STYER                                     GERALD A. LATANICH
Tuscarawas County Prosecutor                   Tuscarawas County Public Defender Office
R. SCOTT DEEDRICK                              153 North Broadway
Assistant County Prosecutor                    New Philadelphia, Ohio 44663
for Tuscarawas County
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2012 AP 11 0065                                                 2

Hoffman, P.J.


         {¶1}   Defendant-appellant Jeff L. Marshall appeals his conviction entered by the

Tuscarawas County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On December 13, 2012, Appellant was indicted on two counts of felony

OVI, in violation of R.C. 4511.19; one count of failure to stop after an accident on public

roads or highways, in violation of R.C. 4549.02; and one count of possession of drugs,

in violation of R.C. 2925.11.

         {¶3}   Following a jury trial, Appellant was found guilty of all the charged

offenses. The trial court entered convictions based on the jury’s verdict and sentenced

Appellant to a mandatory term in the Ohio Department of Corrections, and to complete

a program at a community based correctional facility.

         {¶4}   Appellant now appeals, assigning as error:

         {¶5}   “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, BY

DENYING THE APPELLANT A FAIR TRIAL UNDER THE 6TH AND 14TH

AMENDMENT, WHEN IT REFUSED TO REMOVE A POTENTIAL JUROR FOR

CAUSE WHEN REQUESTED BY THE APPELLANT.

         {¶6}   “II. THERE WAS INSUFFICIENT EVIDENCE AT TRIAL TO ESTABLISH

THAT THE APPELLANT WAS THE PERSON NAMED IN THE FIVE PRIOR OVI

CONVICTIONS, THIS VIOLATES THE 14TH AMENDMENT DUE PROCESS CLAUSE.”




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Tuscarawas County, Case No. 2012 AP 11 0065                                               3


                                                    I.

       {¶7}   In the first assignment of error, Appellant maintains the trial court erred in

denying his request to remove a juror for cause. Specifically, Appellant asserts during

voir dire, Juror Hart indicated she would not follow the law and was biased; therefore,

should have been removed for cause.

       {¶8}   Appellant cites R.C. 2945.25. The statute reads,

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

following causes:” * * *

       {¶10} "(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;"

       {¶11} The ultimate question is whether the juror swore 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 (2009), 124 Ohio St.3d

122. The proper test to determine a juror's bias is "whether the nature and strength of

the opinion formed are such as in law necessarily to raise the presumption of partiality."

State v. Blanton (1997), 121 Ohio App.3d 162. The burden is on the challenger. Id.

Unless it is shown the juror actually has such an opinion, in the mind of the juror as will

raise the presumption of partiality, the juror need not necessarily be set aside. Id.; State
Tuscarawas County, Case No. 2012 AP 11 0065                                                  4

v. Wiley (1981), 5 Ohio App.3d 86. The trial court's determination cannot be overruled

absent an abuse of discretion. State v. Wilson (1972), 29 Ohio St.2d 203.

       {¶12} Appellant claims the trial court abused its discretion in not excusing Juror

Hart for cause.     Counsel for Appellant asked the prospective jurors whether the

allegation of five prior OVI convictions caused them major concerns. The following

exchange occurred on the record during voir dire,

       {¶13} “The Court: Mr. Cooke, I’m just going to go ahead and interject for

everybody here. The, the facts are going to be presented about what happened on a

specific day and so part of the elements of what happened on that specific day, and

unfortunately I don’t have them committed to memory, but would be, you know, on this

day and this time that the elements of a, of a operating a vehicle under the influence

occurred and, and that would have something to do with the impairment and, and

operating a vehicle. But another part of that that raises it to the, the level that it is would

be that the State would have to put forth some evidence to show that there were those

prior convictions. Mr. Latanich is phrasing it as an alleged priors because he doesn’t

have to prove it, they do. And so that, that would be an element that, that raises the

seriousness of the offense. But it doesn’t change the fact that the first thing you look at

is whether or not on that day these certain things occurred. And so I don’t know if that

clarifies it, I mean for some of the people that are struggling with the idea that, that there

are some priors, the first thing you have to look at though is whether or not the offense

occurred on this day. And then, if you find that it, that the State proved it, then you

would go on to determine whether or not the State also proved that there were priors.

And that has to do with enhancing or, or elevating the level of the offense. Okay.
Tuscarawas County, Case No. 2012 AP 11 0065                                                5


      {¶14} “Mr. Latanich: Answered your questions?

      {¶15} “Juror: Yeah.

      {¶16} “Mr. Latanich: Okay. Ms. Hart, I believed you raised your hand.

      {¶17} “Juror: Yes.

      {¶18} “Mr. Latanich: Okay. Does the fact that they’re alleging five prior

convictions, does that lessen the burden of proof in this case in your mind?

      {¶19} “Juror: I hate to say it but yes, because to me it just sounds like a pattern

of problems.

      {¶20} “Mr. Latanich: Is there any way how you could put that out of your mind

and, and once again just look at the evidence initially for whether he was under the

influence and then look at the evidence as to whether or not there’s five prior

convictions?

      {¶21} “Juror: Well I could try to, but it would still be in the back of my mind, all of

the previous.

      {¶22} “Mr. Latanich: So you think the burden of proof then is, is lessened in this

case for Jeff in your mind?

      {¶23} “Juror: I hate to say it, but yes.

      {¶24} “* * *

      {¶25} “The Court: I’m going to interrupt one more time because, as far as stating

how much credibility you would give someone’s testimony, your instructions from me at

the end would be that you simply weigh the testimony of everybody regardless of

whether they’re under oath. It’s still up to the jury to decide what testimony to believe

and what not to believe.      And my instruction would be that you should give the
Tuscarawas County, Case No. 2012 AP 11 0065                                                6


Defendant the same attention that you would any other witness, that you would weigh

the credibility of the Defendant in the same way that you would weigh the credibility of

any other witness. And so, I think the question right now is, as you sit here today, if I,

and go ahead and correct me Mr. Latanich if I’m wrong, but you were just asking as, as

they sit today, would you not believe anything he said if he testified.

       {¶26} “* * *

       {¶27} “The Court: Okay, alright. That’s what I needed to know. And there were,

I was trying to keep up with keeping notes on different answers to some of the

questions asked, but I, I think I, need some clarification mainly from Mr. Maurer and Ms.

Hart. As, some of the questions started to come up on being able to present, give, give

the Defendant a fair trial, presume him innocent, give his testimony the same kind of

review that you would give any other testimony.            So, during that whole line of

questioning, somewhere in there I, I lost track of where you stand so, Again, I’ve already

mentioned that my instruction ultimately would be that any witness who’s placed on the,

under oath to give testimony, their credibility or the weight that you give that testimony is

still entirely up to the jury. And so, whether they’re in uniform, whether they’re, you

know, the fact that they’re under oath, you still have to use the, the tests of credibility

that we all use in our lives and, and weigh that testimony yourself. Would you be able

to give, weigh the testimony of the Defendant just as you would anyone else in light of

everything that you’ve heard so far? I guess I’ll ask Ms. Hart first.

       {¶28} “Juror: I, I am not, how do I want to say it, I don’t like to say someone’s

guilty unless I know they’re guilty - -

       {¶29} “The Court: Uh, hm.
Tuscarawas County, Case No. 2012 AP 11 0065                                             7


       {¶30} “Juror: - - so it would depend, like you say, on the evidence.

       {¶31} “The Court: Okay.

       {¶32} “Juror: I would do my best but what I was trying to say, it just seemed like

if he had that many things against him, it just seems like it’s a pattern of problems with

it. That’s, that’s my opinion.

       {¶33} “The Court: Uh, hm. The, well and, and what we, what we would be

asking, what we are asking is that you reserve any judgment about guilty, or not, being

not guilty or not guilty until you hear all of the evidence.

       {¶34} “Juror: Right.

       {¶35} “The Court: And what we don’t want is somebody to sit here right now and

say, well he’s guilty until he shows me he’s innocent. Because that’s not the way our

system works, you know, right now he is innocent until the State proves that he is guilty

beyond a reasonable doubt and they would have to prove all of those elements. Mr.

Marshall has the option of not testifying at all, and because all of the burden is on the

State of Ohio to prove him guilty and so, you know, if he, if he doesn’t, and my other

instruction would be that if he does not testify, you, you also cannot consider that for

any purpose. And so I only had a note of, on the issue of credibility with you was, was

kind of where I had caught that.

       {¶36} “Juror: Uh, hm.

       {¶37} “The Court: But, you know, overall do you think that you could listen to the

facts of this case, this particular day and this incident, and determine whether the State

proved all of the evidence beyond a reasonable doubt?
Tuscarawas County, Case No. 2012 AP 11 0065                                             8


      {¶38} “Juror: I would say yeah, I mean, the way I look at it, if there’s enough

evidence against him - -

      {¶39} “The Court: Uh, hm.

      {¶40} “Juror: - - then in my eyes I would say he’s guilty.       If there’s enough

evidence.”

      {¶41} Tr. at 74-76; 78; 86-88.

      {¶42} In light of the above, we find the trial court did not abuse its discretion in

denying Appellant's request to remove the juror for cause.

      {¶43} The first assignment of error is overruled.

                                               II.

      {¶44} In the second assignment of error, Appellant maintains his conviction is

against the sufficiency of the evidence.

      {¶45} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.
Tuscarawas County, Case No. 2012 AP 11 0065                                              9


       {¶46} In the case sub judice, Appellant maintains there was insufficient evidence

before the jury upon which they could have found the five prior convictions for driving

under the influence of alcohol were against Appellant.

       {¶47} R.C. 2945.75(B)(1) reads in pertinent part,

       {¶48} "(B)(1) Whenever in any case it is necessary to prove a prior conviction, a

certified copy of the entry of judgment in such prior conviction together with evidence

sufficient to identify the defendant named in the entry as the offender in the case at bar,

is sufficient to prove such prior conviction.

       {¶49} "(2) Whenever in any case it is necessary to prove a prior conviction of an

offense for which the registrar of motor vehicles maintains a record, a certified copy of

the record that shows the name, date of birth, and social security number of the

accused is prima-facie evidence of the identity of the accused and prima-facie evidence

of all prior convictions shown on the record. The accused may offer evidence to rebut

the prima-facie evidence of the accused's identity and the evidence of prior convictions.

Proof of a prior conviction of an offense for which the registrar maintains a record may

also be proved as provided in division (B)(1) of this section.

       {¶50} "(3) If the defendant claims a constitutional defect in any prior conviction,

the defendant has the burden of proving the defect by a preponderance of the

evidence."

       {¶51} Captain Shawn Nelson of the New Philadelphia Police Department

testified at trial herein,

       {¶52} “Q. Captain, I’m going to hand you what’s been marked as State’s Exhibits

I through M and have you take a look.
Tuscarawas County, Case No. 2012 AP 11 0065                                            10


       {¶53} “Mr. Deedrick: I’d like the record to reflect that these were shown to

counsel for the Defendant and had previously been provided in discovery.

       {¶54} “Q. Do you recognize these documents?

       {¶55} “Yeah, these are what I would say, describe as certified Court records

showing prior convictions of OVI and they, each one has Jeff Marshall as the Defendant

with a date of birth of nine twenty-one seventy. Yeah, they’re all, Mr. Marshall is the

Defendant and I can read the dates if you want me to read them into the record.

       {¶56} “Q. Um, just if you could read the case numbers, um, and the dates, the

file stamped dates.

       {¶57} “A. I’m not sure if I’ll be able to do the case numbers completely here, hold

on.   I’ll start with this one.   This is a traffic slash criminal case from o-four, TRC

0400066A-B and criminal case 0400019A-C.

       {¶58} “Q. What number is that, or letter exhibit? Turn it over. ‘

       {¶59} “A. I’m sorry, that’s L.

       {¶60} “Q. Okay.

       {¶61} “A. This one’s going to be a K.        It’s traffic case 9008488A,9608488,

9608488C, B and D, it looks like they’re all the same numbers, they did it differently

back then apparently. And again, Mr. Marshall and it’s Exhibit K. Do you want me to

continue?

       {¶62} “Q. Go ahead.

       {¶63} “A. This is case number 2005CRA699 and that’s Exhibit M. And this one

is 49-90-TRC-9083 and 9092 and 9-90 criminal case 1348, 1349 and 1350 and that’s

Exhibit I. and case Number 9500003A-E and that’s Exhibit J.
Tuscarawas County, Case No. 2012 AP 11 0065                                                 11


        {¶64} “Q. And these are certified copies of judgment entries from various

Courts?

        {¶65} “A. Yes sir.

        {¶66} “Q. Okay. And they are versus Jeff Marshall, is that the Defendant in this

case?

        {¶67} “A. Yes sir.

        {¶68} “Q. And are these then five convictions for driving under the influence of

alcohol against the Defendant?

        {¶69} “A. I see 4511.19(A) on this one so - -

        {¶70} “Q. What code section is that to you?

        {¶71} “A. 4511, uh, there’s two, two sections that cover OVI, and one’s municipal

which is the 333.01(A)(1) which that is, we don’t use that any more, we go under state.

And the only reason we use the state now as opposed, there’s no difference, except for

if they go to jail for it, the city has to pay for their jail time if you use the city code and

we’re poor. So we put it under state code and the state picks up the bill. And this one

is actually the 333.01(A)(1) so that would also be OVI. This is a 4511.19(A) which is, as

I stated, OVI, 4511.19(A)(1) and 4511.19(A)(1) also on this one also.

        {¶72} “Q. So all five of those exhibits deal with a conviction for driving under the

influence of alcohol, either under the village or state statute?

        {¶73} “A. Correct.

        {¶74} “Q. And they’re all against Mr. Marshall, the Defendant in this case.

        {¶75} “A. Yes sir.”

        {¶76} Tr. at 405-407.
Tuscarawas County, Case No. 2012 AP 11 0065                                           12


       {¶77} As set forth above, Captain Nelson testified at trial as two five prior

certified judgment entries exchanged during discovery.       He testified all five were

convictions against Appellant. Appellant did not object to the testimony. As set forth in

R.C. 2945.75(B) above, Appellant had the burden of proving the defect in the evidence

by a preponderance of the evidence.

       {¶78} The second assignment of error is overruled.

       {¶79} Appellant's conviction in the Tuscarawas County Court of Common Pleas

is affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
Tuscarawas County, Case No. 2012 AP 11 0065                                       13


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
JEFF L. MARSHALL                          :
                                          :
       Defendant-Appellant                :         Case No. 2012 AP 11 0065


       For the reasons stated in our accompanying Opinion, Appellant's convictions in

the Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY
