[Cite as State v. Black, 2017-Ohio-3001.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :
                                                                   No. 16AP-405
                 Plaintiff-Appellee,               :           (M.C. No. 2016 CRB 7169)
                                                                         &
v.                                                 :               No. 16AP-406
                                                              (M.C. No. 2015 CRB 30259)
Robert N. Black, III,                              :
                                                              (REGULAR CALENDAR)
                 Defendant-Appellant.              :



                                            D E C I S I O N

                                       Rendered on May 25, 2017


                 On brief: Richard C. Pfeiffer, Jr., City Attorney, Melanie R.
                 Tobias, and Orly Ahroni, for appellee. Argued: Orly
                 Ahroni.

                 On brief: Brehm & Associates, and Robert J. Beck, Jr., for
                 appellant. Argued: Robert J. Beck, Jr.

                      APPEALS from the Franklin County Municipal Court

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Robert N. Black, III, appeals from his domestic
violence convictions in the Franklin County Municipal Court. For the following reasons,
we affirm.
I. Factual and Procedural Background
        {¶ 2} This appeal arises from two cases in the Franklin County Municipal Court.
In case No. 2015 CRB 30259, Black was charged with committing domestic violence in
violation of R.C. 2919.25(A), a misdemeanor of the first degree, and assault in violation of
R.C. 2903.13(A), a misdemeanor of the first degree. The criminal complaints in case No.
2015 CRB 30259 alleged that on December 31, 2015, Black assaulted his father, Robert N.
Black, Jr. In case No. 2016 CRB 7169, Black was charged with committing domestic
Nos. 16AP-405 and 16AP-406                                                                 2


violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree, and assault in
violation of R.C. 2903.13(A), a misdemeanor of the first degree. The criminal complaints
in case No. 2016 CRB 7169 alleged that on April 2, 2016, Black again assaulted his father.
Black pleaded not guilty in both cases. The trial court approved Black's request to
represent himself at trial, and it consolidated the two cases for the purpose of trial.
       {¶ 3} Black did not post bond and thus was in custody during the trial court
proceedings. The parties dispute whether Black was physically restrained by shackles
when he appeared before the jury. The portions of the record relating to the shackling of
Black are detailed below as part of our analysis of Black's sole assignment of error.
       {¶ 4} At trial the state presented evidence demonstrating that on both
December 31, 2015 and April 2, 2016, Black assaulted his father. Following deliberations,
the jury found Black guilty as charged. The domestic violence and assault convictions
merged for the purpose of sentencing, and, based on the state's election, the trial court
proceeded to sentence Black on the domestic violence counts in each case.
       {¶ 5} Black timely appeals from his convictions.
II. Assignment of Error
       {¶ 6} Black assigns the following error for our review:
              The trial court did err by ordering the defendant to appear
              before the jury in visible shackles.

III. Discussion
       {¶ 7} In his sole assignment of error, Black asserts the trial court erred in
ordering him to appear before the jury in visible shackles. The due process guarantees
embodied in the Fifth and Fourteenth Amendments to the United States Constitution
forbid the use of visible shackles during trial unless their use is justified by an essential
state interest, such as where there is danger of violence or escape. Deck v. Missouri, 544
U.S. 622, 624 (2005); State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 79. Visible
shackling undermines the presumption of innocence and the related fairness of the fact-
finding process. Deck at 630; see Franklin at ¶ 79 (noting that the presence of restraints
tends to erode the presumption of innocence that the justice system attaches to every
defendant). The use of shackles also can interfere with a defendant's ability to participate
in his own defense and undermine the formal dignity of the judicial process. Deck at 631.
Nos. 16AP-405 and 16AP-406                                                                3


Thus, no defendant should be tried while shackled, except as a last resort. State v.
Chester, 10th Dist. No. 08AP-1, 2008-Ohio-6679, ¶ 5, citing Illinois v. Allen, 397 U.S. 337,
344 (1970).
       {¶ 8} The decision of whether to shackle a criminal defendant during trial lies
within the sound discretion of the trial court. Chester at ¶ 5. "[W]here a court, without
adequate justification, orders the defendant to wear shackles that will be seen by the jury,
the defendant need not demonstrate actual prejudice to make out a due process violation.
The State must prove 'beyond a reasonable doubt that the [shackling] error complained of
did not contribute to the verdict obtained.' " Deck at 635, quoting Chapman v. California,
386 U.S. 18, 24 (1967).         Shackling a defendant in plain view of the jury has been
considered "inherently prejudicial." State v. Irwin, 184 Ohio App.3d 764, 2009-Ohio-
5271, ¶ 235 (7th Dist.). However, if a jury briefly and inadvertently views a defendant in
handcuffs, the defendant must demonstrate actual prejudice. State v. McKnight, 107
Ohio St.3d 101, 2005-Ohio-6046, ¶ 219; see State v. Kidder, 32 Ohio St.3d 279, 286
(1987) ("[T]he danger of prejudice to defendants is slight where a juror's view of
defendants in custody is brief, inadvertent and outside of the courtroom."). See also State
v. Henderson, 11th Dist. No. 2010-T-0095, 2012-Ohio-740, ¶ 70 ("a brief, inadvertent
sighting of the defendant in shackles will not result in a due process violation unless
actual prejudice can be shown"); State v. Hairston, 4th Dist. No. 06CA3087, 2007-Ohio-
4159, ¶ 26 ("[A] brief, inadvertent sighting of a defendant in handcuffs is not usually
prejudicial.").
       {¶ 9} Here, Black asserts he was required to wear visible leg shackles before the
venire, despite the absence of a court finding that such a precaution was necessary.
Black's cases were scheduled for trial on April 25, 2016, and Black appeared in court on
that date "dressed in handcuffs and in inmate garb" because he had not posted bond and
remained in custody. (Apr. 25, 2016 Tr. at 15.) Black expressed concern to the court
regarding his attire and his physical restraints. He requested that his "first impression to
the jury not be [of him] in ankle and hand irons and inmate gear." (Apr. 25, 2016 Tr. at
15.) The prosecutor responded by stating:
                  So if the defendant wants to be in street clothes for his initial
                  impression to the jurors, I don't have an objection to that. I
Nos. 16AP-405 and 16AP-406                                                                 4


              just want him to clarify if the defendant is only asking that he
              be unshackled for his initial appearance in front of the jurors.
              I also don't object to that, but I want to have -- I want the
              Court to have that conversation. So if the defendant wants to
              wait until tomorrow when he's in street clothes to appear in
              front of the jurors, I have no objection to that, given the fact
              that he's made the motion. But if he wants to appear as he is
              now, but without shackles, I also don't have an objection. I
              just want the Court to clarify with the defendant.
(Apr. 25, 2016 Tr. at 16.) Black then stated: "I am clarifying that I would like my first
impression in front of the jury and all other impressions to be in my street clothes and not
in my jumpsuit and shackles." (Apr. 25, 2016 Tr. at 16.) The prosecutor responded: "I
don't object to that.    It sounds like maybe we should begin the voir dire process
tomorrow." (Apr. 25, 2016 Tr. at 16.) The court stated: "Okay. Based on that motion, I'm
going to grant you that. We will start this tomorrow. * * * You'll be allowed to be in street
clothes and have access to the law library per protocols of the jail." (Apr. 25, 2016 Tr. at
16-17.) On the same day, the trial court signed an entry in both cases granting Black
access to the law library and stating that he will "be dressed in street clothes."
       {¶ 10} During the voir dire proceedings on April 26, 2016, Black made the
following statement to the potential jury: "I hope you guys don't mind, but I'm instructed
to stay behind the table, so I won't get to do all the walking around that the prosecution
does." (Apr. 26, 2016 Tr. at 51-52.) The transcript of the voir dire does not contain any
other reference to a restraint on Black's movement. However, on the day following jury
selection, April 27, 2016, and before the jury entered the courtroom for preliminary
instructions and the parties' opening statements, the court ordered that Black would be
unshackled before the jury. The discussion regarding this issue suggests that Black, until
that point in time, may have been shackled with leg irons in court, including during his
appearance before the jury during voir dire.
       {¶ 11} The proceedings on April 27, 2016 began with the state making a motion in
limine. After ruling on the motion in limine, the trial court stated, "At this time, we're
going to call the jury. We have his shackles on?" (Apr. 27, 2016 Tr. at 34.) The courtroom
deputy responded affirmatively. Black then requested that if he was required to stand
behind the counsel table "the entire time with [his] shackles," the prosecution should be
Nos. 16AP-405 and 16AP-406                                                                  5


restricted to stay behind their counsel table. (Apr. 27, 2016 Tr. at 34.) The prosecutors
indicated they did not object "to the unshackling of the defendant," but also acknowledged
logistical issues related to Black representing himself, such as where to conduct sidebars.
(Apr. 27, 2016 Tr. at 35.) The trial court then stated: "As for sidebar, okay, Mr. Black * * *
what I am going to do to entrust upon you -- I am going to unshackle you. Okay? * * *
You're going to stay there, though. * * * You are not going to approach the witnesses. * * *
This is only for sidebar will you be able to come over here. Okay?" (Apr. 27, 2016 Tr. at
36.) After further explaining the procedure that would be followed in the courtroom
relating to Black's movement, the trial court directed the deputies to unshackle him, and
they complied. The jury then entered the courtroom for preliminary instructions and
opening statements from the prosecution and Black.
       {¶ 12} The April 27, 2016 discussions in court regarding Black being in shackles
indicates the trial court may not have previously ordered Black's shackles to be removed,
thus supporting Black's assertion that he was in shackles during voir dire. Additionally,
the court was informed near the conclusion of trial that a juror told the other jurors that
he or she had seen Black in shackles on the jury's "first day." The courtroom bailiff
reported the following:
              One of the jurors came in early this morning to report to the
              jury commissioner that one of the other jurors went back in
              the conference room or in the jury deliberation room
              yesterday and noticed that the deputies had tasers, and they
              wanted to know that -- she said that, Wouldn't it be fun to
              watch Mr. Black be tasered. And they said something about
              one of them had noticed that he did have shackles on and the
              woman who reported this indicated that she felt the rest of the
              jurors kind of felt uncomfortable about that.
(Apr. 28, 2016 Tr. at 198-99.) The bailiff added, "just the one person was doing the
speaking; and then another person reported it." (Apr. 28, 2016 Tr. at 199.)
       {¶ 13} The court summoned the juror who had referred to a possible tasering into
the courtroom for examination. During that examination, the juror stated that she had
said to other jurors that she "thought it would be cool to see somebody tased." (Apr. 28,
2016 Tr. at 202.) After the juror recounted her taser comment, the following colloquy
occurred:
Nos. 16AP-405 and 16AP-406                                                        6


             [The Court]: Okay. And did you mention anything about any
             of, you know, whether he'd been wearing handcuffs or
             shackles or leg irons or anything like that? Was there any
             reference to that?

             [Juror]: Someone had said on the first day he was wearing leg
             irons, which the consensus was that not a lot of people had
             seen that. And -- Let's see -- Somehow it would -- I don't
             know who brought it up, but it was -- I had mentioned that,
             you know, it was nice that they -- if he was in custody, that it
             was nice that they let him dress professional so that he looks
             like a member of society and --

             [The Court]: And be in street clothes.

             [Juror]: Yeah.
(Apr. 28, 2016 Tr. at 203-04.)
      {¶ 14} Outside the hearing of the questioned juror, the following discussion
occurred:
             [Black]: I think it clearly disqualifies this juror. The question
             is relating to the incident, and the commenting -- It would be
             interesting to inquire, investigate, or bring out the other jurors
             to ask if they heard it or if it makes them feel if they can be
             impartial in their decisions and deliberations. It also seems
             like it wasn't just one person who saw me in leg irons, but she
             said --

             The Court: I'm sure everybody --

             [Black]: Yeah, given those things, do they think they could be
             a fair and impartial jury? It would be nice to hear from them
             individually --

             [Prosecutor]: I mean --

             [Black]: -- given the severity.

             The Court: The Court was going to leave you in leg irons, and
             the likelihood they were going to see you in leg irons was --

             [Black]: Probable.

             The Court: It was very probable.
Nos. 16AP-405 and 16AP-406                                                                    7


              [Black]: Right. It's compounded by this conduct, though.
(Apr. 28, 2016 Tr. at 204-05.)
       {¶ 15} The state indicated it did not oppose Black's request to substitute the
questioned juror with the first alternate juror. The court informed Black: "Just so you
know, I'm going to substitute Alternate 1 for her," and then added, "And it was a given
that people could see you. Okay?" (Apr. 28, 2016 Tr. at 205-06.) This juror was excused
from service, and the court indicated that it would not conduct further inquiry regarding
the statements made amongst the jurors. Black stated: "Even if not individually, it would
be nice -- just a show of hands to know if the jury still believes they can make an impartial
decision." (Apr. 28, 2016 Tr. at 207.) The court brought the jury back into the courtroom
and made the following inquiry:
              It came to the Court's attention that something was said in the
              jury deliberation room yesterday; and because of the
              statements that were said, the Court felt that it was only
              proper to remove Juror No. 2. The Court would like to make
              an inquiry as to the rest of the jurors here whether you feel
              that you can be fair and impartial in this trial; and if there's
              anybody who can't, please speak up now.

              Okay. Seeing that nobody has spoken up, I believe that you all
              can be fair and impartial for the rest of the trial. Okay.
              Everybody satisfied?

              (No audible response.)
(Apr. 28, 2016 Tr. at 207-08.)
       {¶ 16} Thus, the record indicates that Black may have been forced to wear at least
partially visible leg shackles before the venire, despite no finding by the trial court that the
shackling was necessary. In reviewing this alleged error, we must determine the standard
of review to apply. The use of restraints in the courtroom without justification is not
structural error. Chester at ¶ 17 ("[A]ny error in shackling a defendant during trial is not a
structural error."). Generally, harmless error analysis applies to appellate review of the
use of physical restraints on a criminal defendant at trial. Id., citing Deck. In the absence
of a timely objection, however, we must review the improper use of shackles for plain
error. See State v. Murphy, 4th Dist. No. 09CA3311, 2010-Ohio-5031, ¶ 40 (plain error
analysis is applied when defendant fails to timely object to the use of shackles); State v.
Nos. 16AP-405 and 16AP-406                                                                  8


Blacker, 12th Dist. No. CA2008-07-094, 2009-Ohio-5519, ¶ 38 (failure to object to
shackling waives argument on appeal other than plain error).
       {¶ 17} If Black was in fact shackled during voir dire despite no trial court finding
that the shackling was necessary, he did not preserve the alleged error for appellate
review. As set forth above, the day before voir dire, Black requested that he appear in
street clothes without shackles in front of the jury and that he have access to a law library.
The court generally granted the multifaceted motion, but then specifically addressed the
street clothes and law library issue without mentioning the shackles. In the entry the
court signed authorizing Black to appear in street clothes and have access to a law library,
there is no reference to shackling. Thus, while the court appeared to grant Black's request
to appear without shackles, in context, the ruling was unclear. Either the court granted
the motion to appear without shackles or in effect tabled its ruling on that issue. When it
came time the next day for Black to appear before the venire, he did not object to being in
leg shackles. Such an objection would have either alerted the court to rule on the tabled
issue, or challenged the court's inconsistency in forcing him to be shackled despite the
court's granting of his multifaceted motion the day before.         Therefore, under these
particular circumstances, we find Black did not timely object to the trial court's alleged
error. Consequently, he waived all but plain error.
       {¶ 18} Under Crim.R. 52(B), an appellate court may take notice of "plain errors"
even when "they were not brought to the attention of the court." For an error to constitute
"plain error" under Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error,
meaning a deviation from a legal rule, (2) the error must be "plain," meaning an "obvious"
defect in the trial proceedings, and (3) the error must have affected "substantial rights,"
meaning the error must have affected the outcome of the trial. State v. Barnes, 94 Ohio
St.3d 21, 27 (2002). An appellate court recognizes plain error with the utmost caution,
under exceptional circumstances, and only to prevent a miscarriage of justice. State v.
Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Saleh,
10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 68. The defendant bears the burden of
demonstrating plain error. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 14.
Here, Black has not met that burden.
Nos. 16AP-405 and 16AP-406                                                                    9


       {¶ 19} While secondhand reporting to the trial court suggested that some of the
jurors saw Black in shackles, that reporting also indicated that not all of the jury saw the
shackles. Even assuming one or more (but not all) of the jurors saw Black in leg irons
during voir dire, the record does not reflect the duration and particular circumstances of
that sighting. Those details are left to speculation. Moreover, when it became known to
the court and parties that one or more jurors may have seen Black in shackles and
reported that observation to the rest of the jury, the trial court inquired of the jury in
accordance with Black's request.       While Black initially suggested that the jurors be
questioned individually, he ultimately requested the court question the jury collectively
regarding their ability to remain impartial. Lastly, Black does not challenge the evidence
as demonstrating his guilt. Black's convictions were largely based on the testimony of his
father, who testified that Black assaulted him on two separate occasions, and, in this
appeal, Black does not challenge his father's credibility. For these reasons, we find Black
has failed to demonstrate that were it not for trial court error, the results of the trial would
have been different. Black's convictions were not a miscarriage of justice.
       {¶ 20} Accordingly, we overrule Black's sole assignment of error.
IV. Disposition
       {¶ 21} Having overruled Black's sole assignment of error, we affirm the judgments
of the Franklin County Municipal Court. Although we affirm the trial court's judgments,
we note that the trial court's judgment entries mistakenly indicate that Black pleaded
guilty to domestic violence, and not that a jury found him guilty of domestic violence and
assault in both cases. Thus, we remand these matters to that court with instructions that
the court correct the clerical errors and file nunc pro tunc entries reflecting that Black was
found guilty following a jury trial.
                                                                     Judgments affirmed;
                                                         causes remanded with instructions.

                          TYACK, P.J., and DORRIAN, J., concur.
