[Cite as State v. Stafford, 2020-Ohio-3993.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                      Hon. Craig R. Baldwin, J.
                                                 Hon. Earle E. Wise, Jr., J.
 -vs-
                                                 Case No. 18-COA-036
 RAYMOND STAFFORD

        Defendant-Appellant                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Ashland County Court of
                                                 Common Pleas, Case No. 17-CRI-178


 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         August 5, 2020


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 CHRISTOPHER TUNNELL                             MATTHEW J. MALONE
 Ashland County Prosecutor                       Law Offices of Matthew J. Malone, LLC
                                                 10 East Main Street
 VICTOR R. PEREZ                                 Ashland, Ohio 44805
 COLE F. OBERLI
 Assistant Prosecuting Attorney’s
 110 Cottage Street
 Ashland, Ohio 44805
Ashland County, Case No. 18-COA-036                                                                           2


Hoffman, P.J.
        {¶1}     Defendant-appellant Raymond Stafford appeals his conviction and

sentence entered by the Ashland County Court of Common Pleas, upon this Court's

granting of his App.R. 26(B) motion to reopen the appeal. Plaintiff-appellee is the state of

Ohio.

                                         STATEMENT OF THE CASE1

        {¶2}     On December 15, 2017, the Ashland County Grand Jury indicted Appellant

on one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a

felony of the third degree. The Indictment arose out of a fatal two car accident on

November 28, 2016, which resulted in the death of Ernie Whitesel. The November 28,

2016 accident occurred when Appellant, who was driving a Mini Cooper, tried to pass

Whitesel's Dodge Avenger. Appellant appeared before the trial court for arraignment on

December 21, 2017, and entered a plea of not guilty to the Indictment.

        {¶3}     The state filed a motion in limine, requesting the trial court prohibit Appellant

from introducing any testimony and/or evidence regarding the presence of

methamphetamine in Whitesel's system at the time of his death. Appellant filed a timely

response, arguing the presence of illegal drugs in Whitesel's system would support his

theory Whitesel caused the accident. After conducting a hearing, the trial court granted

the state's motion in limine, prohibiting the presentation of any evidence Whitesel had

methamphetamines in his system.




1For a complete recitation of the underlying facts and prior procedural history of this matter, see this Court’s
opinion in Appellant’s direct appeal, State v. Stafford, 5th Dist. Ashland App. No. 18-COA-036, 2019 -Ohio-
3628.
Ashland County, Case No. 18-COA-036                                                        3


       {¶4}   The matter proceeded to trial on September 25, 2018. The state called eight

witnesses, including the first responders, the medical examiner who conducted the

autopsy of Whitesel, and three accident reconstructionists, who were recognized as

experts by the court. After hearing all the evidence and deliberating, the jury found

Appellant guilty as charged. The trial court sentenced Appellant to a period of

incarceration of 18 months with credit for time served; suspended Appellant's license for

a period of five years; and ordered him to pay restitution to Whitesel's family in the amount

of $13,300.25, as well as court costs.

       {¶5}   Appellant appealed his conviction and sentence to this Court, raising two

assignments of error. Appellant’s first assignment of error challenged the trial court’s

failure to allow him to introduce evidence of the illegal drug levels found in the victim’s

system at the time of the crash. In his second assignment of error, Appellant claimed trial

counsel was ineffective for failing to object to testimony regarding the ultimate issue of

recklessness. This Court affirmed Appellant’s conviction and sentence. State v. Stafford,

5th Dist. Ashland App. No. 18-COA-036, 2019-Ohio-3628.

       {¶6}   On September 25, 2019, Appellant filed an Application for Reopening

pursuant to App. R. 26(B). Therein, Appellant asserted appellate counsel was ineffective

on direct appeal for failing to raise three proposed assignments of error: I. Trial counsel

was ineffective in failing to object to erroneous, contradictory, and prejudicial jury

instructions; II. Trial counsel was ineffective for failing to request appropriate lesser

included offenses; and III. Jury selection irregularities.

       {¶7}   Relative to the third proposed assignment of error, Appellant filed a motion

for partial transcript at the state’s expense. Via Judgment Entry filed November 26, 2019,
Ashland County, Case No. 18-COA-036                                                        4


this Court granted Appellant’s motion and ordered the transcript of the voir dire only be

prepared at the state’s expense. This Court also held in abeyance a ruling on Appellant’s

third proposed assignment of error. Via Judgment Entry filed December 11, 2019, this

Court granted Appellant’s motion to reopen with respect to Proposed Assignment of Error

1, overruled the motion with respect to Proposed Assignment of Error 2, and reiterated

our prior decision to hold in abeyance a ruling on Proposed Assignment of Error 3. We

ordered the Ashland County Clerk of Courts to transmit the record in this matter and

briefing proceed in accordance with App. R. 18.

       {¶8}   On December 18, 2019, the state filed a motion to correct the record in the

trial court, arguing the court reporter misplaced a period as well as the word “recklessly”

when she prepared the trial transcript for the direct appeal. The state sought an order

from the trial court to correct the alleged errors. On December 20, 2019, the court reporter

filed an Errata Sheet with the trial court, offering the following corrections after checking

her steno notes:



              Page No. 416 Line No. 20 & 21 Change to: . . . caused the death of

       Ernest R. Whitesel recklessly.

              Operate means to cause or have caused movement.

              Reason for change: Recklessly should have been attached to prior

       sentence as read to the Jury from the Jury Charge by the Judge. December

       20, 2019 Errata Sheet.
Ashland County, Case No. 18-COA-036                                                         5


       {¶9}   Via Judgment Entry filed January 2, 2020, the trial court granted Appellant

an extension of time in which to file a response to the state’s motion to correct the record,

but denied Appellant’s request for a hearing. The trial court noted:



              The jury was provided the written copy of the jury instructions from

       which the Court read the instructions of law at the time the jury was charged.

       The written copy of the jury instructions, preserved for the record with the

       exhibits, accurately reflects the instructions read and physically handed to

       the jury for the purpose of deliberating the case. The Court possesses a

       copy of those instructions, as printed for the jury and they are already a part

       of the record in this case. A hearing is not necessary. January 2, 2020

       Judgment Entry.



       {¶10} Subsequently, on January 21, 2020, the trial court issued a judgment entry,

granting the state’s motion to correct the record. The trial court stated:



              At issue here is mis-placed punctuation in the transcript of the

       [c]ourt’s jury charge. As the [c]ourt noted in a previous entry, the jury in this

       case was provided with the written text of the jury charged for use in the jury

       room. The jury did not receive the stenographer’s interpretation of the

       [c]ourt’s oral inflection used during the jury charge. Clearly, even with the

       record as presented prior to correction, the [c]ourt stated the word

       “recklessly” while charging the jury. It is not as if the [c]ourt failed to give a
Ashland County, Case No. 18-COA-036                                                  6


      portion of the charge.    In this case, it is merely the stenographer’s

      interpretation of what was stated by the [c]ourt that is at issue, not the

      statement itself. One cannot assume, even considering the stenographer’s

      error, that the jurors heard the charge as reflected by the stenographer’s

      keying. January 21, 2020 Judgment Entry.



      {¶11} The trial court continued:



             The [c]ourt read the jury charge from the printed copy ultimately

      given to the jury, and which the jury possessed during deliberations for

      referral. There is no dispute as to the content and punctuation of the text

      from which the [c]ourt read the instructions to the jury, and which the jury

      possessed for reference purposes while engaged in deliberations. Id.



      {¶12} On December 20, 2019, the state filed a motion for reconsideration of this

Court’s decision to reopen Appellant’s appeal.      This Court denied the motion for

reconsideration on January 7, 2020.

      {¶13} Upon completion of the transcript of the voir dire, Appellant filed a

Supplemental Application to Reopen Pursuant to App. R. 26(B) on January 2, 2020. This

Court granted reopening of Appellant’s third proposed assignment of error.

      {¶14} Appellant presents the following assignments of error in this reopened

appeal for our review:
Ashland County, Case No. 18-COA-036                                                       7


              I. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT

       TO ERRONEOUS, CONTRADICTORY, AND PREJUDICIAL JURY

       INSTRUCTIONS.

              III. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

       BE PRESENT WHEN VOIR DIRE OF AN IMPANNELED [SIC] JUROR,

       WHO HAD FAILED TO DISCLOSE A PERSONAL RELATIONSHIP WITH

       THE ALLEGED VICTIM, OCCURRED OUTSIDE OF APPELLANT’S

       PRESENCE       AND     WITHOUT      APPELLANT’S        WRITTEN      WAIVER

       PURSUANT TO CRIM. R. 43.




                                             I

       {¶15} In his first assignment of error, Appellant raises a claim of ineffective

assistance of counsel due to defense counsel’s failure to object to jury instructions, which

he contends were erroneous, contradictory, and prejudicial.

       {¶16} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
Ashland County, Case No. 18-COA-036                                                       8


of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶17} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

       {¶18} Appellant submits trial counsel was ineffective for failing to object to

following portion of the jury instructions as set forth in the trial transcript:



               The Defendant, Raymond L. Stafford, is charged in Count 1 of the

       Indictment, Aggravated Vehicular Homicide. Before you find the Defendant

       guilty, you must find that on or about November 28, 2016, in Ashland

       County, Ohio the Defendant, while operating or participating in the operation

       of a motor vehicle, caused the death of Ernest R. Whitesel.

               Recklessly operate means to cause or have caused movement.

               **
Ashland County, Case No. 18-COA-036                                                        9


              A person is reckless with respect to circumstances when, with

       heedless indifference to the consequences, the person disregards a

       substantial and unjustifiable risk that such circumstances are likely to exist.

              And risk is a significant possibility, as contrasted with a remote

       possibility, that a certain result may occur or that a certain circumstance

       may exist.

              Recklessly includes conduct that is knowingly or purposely

       performed. Tr. Transcript at 416, 419.



       {¶19} Appellant contends, “The instruction given advised jurors that they would

need to find that Appellant, while operating a motor vehicle, caused the death of Ernest

R. Whitesel” and such “advisement lacked the required mens rea necessary to sustain a

finding of guilt.” Brief of Appellant at 4. Appellant adds, by defining “recklessly operate”

as “to cause or have caused movement”, the trial court “advised the jury that it could

convict so long as it believed that Appellant had operated a vehicle that caused movement

and Ernest R. Whitesel died.” Id. Appellant concludes the trial court’s failure to instruct

on the appropriate mens rea was “unquestionably prejudicial as is [sic] relieved the jury

of its obligation to determine that the State proved each and every element, including that

the conduct was reckless.” Id. at 5. We disagree.

       {¶20} The written jury instruction as read by the trial court and provided to the jury

for use during deliberations provides:
Ashland County, Case No. 18-COA-036                                                           10


              The Defendant, Raymond L. Stafford, is charged in Count 1 of the

       Indictment, Aggravated Vehicular Homicide. Before you find the Defendant

       guilty, you must find that on or about November 28, 2016, in Ashland

       County, Ohio the Defendant, while operating or participating in the operation

       of a motor vehicle, caused the death of Ernest R. Whitesel recklessly.

              Operate means to cause or have caused movement.



       {¶21} This instruction parallels the language of the Ohio Jury Instruction for

aggravated vehicular homicide, OJI CR 503.06. The state’s motion to correct the record

sought to correct the trial transcript to conform to trial court’s oral and written instructions.

The court reporter filed the Errata Sheet to reflect the same. The Errata Sheet changes

the placement of a single punctuation mark, a period. When the court reporter changes

the placement of the period, the jury instruction parallels the trial court’s written instruction

as well as the Ohio Jury Instructions.

       {¶22} We further find the jury instructions, as a whole, were not “so deficient as to

render the jury’s verdict unreliable,” as Appellant asserts. Brief of Appellant at 7. The

trial court was not required to define the terms “purposeful” and “knowing” for the jury as

such are not the culpable mental state for the offense of aggravated vehicular homicide.

       {¶23} Based upon the foregoing, we find trial counsel was not ineffective for failing

to object to the jury instructions.

       {¶24} Appellant’s first assignment of error is overruled.
Ashland County, Case No. 18-COA-036                                                       11


                                               III

       {¶25} In his third assignment of error, Appellant contends his constitutional right

to be present at every stage of his proceedings was violated when the trial court

conducted a voir dire of Juror No. 2, who was already impaneled, outside of his presence

and without a waiver of his right to be present.

       {¶26} An accused has a fundamental right to be present at all stages of his

criminal trial. Ohio Constitution, Article I, Section 10; Crim.R. 43(A). “An accused's

absence, however, does not necessarily result in prejudicial or constitutional error.” State

v. Hamilton, 1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 30.

“[T]he presence of a defendant is a condition of due process to the extent that a fair and

just hearing would be thwarted by his absence, and to that extent only.” Id., citing, Snyder

v. Massachusetts, 291 U.S. 97, 107–108, 54 S.Ct. 330, 78 L.Ed. 674 (1937), overruled

on other grounds; Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d

491 (1968); and Malloy v. Hogan, 378 U.S. 1, 2, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964),

fn. 1. In order to be deemed nonprejudicial, an error of constitutional stature, either state

or federal, must be “harmless beyond a reasonable doubt.” State v. Williams, 6 Ohio St.3d

281, 286, 452 N.E.2d 1323 (1983), citing, Chapman v. California, supra, at 24, 87 S.Ct.

at 828; State v. Abrams (1974), 39 Ohio St.2d 53, 313 N.E.2d 823, paragraph two of the

syllabus.

       {¶27} We find Appellant's absence during the voir dire of Juror No. 2 did not result

in prejudicial or constitutional error, primarily because Juror No. 2 was ultimately excused

from the jury prior to the start of their deliberations.
Ashland County, Case No. 18-COA-036                                                         12


       {¶28} The voir dire of Juror No. 2 occurred after the jury was sworn in and

impaneled. During the lunch recess, Juror No. 2 remembered he had met Whitesel 5 or

6 years prior to the trial, and so advised the trial court. The trial court conducted an in

camera voir dire of Juror No. 2 with the prosecutor and defense counsel. Defense counsel

did not object to Appellant’s absence and, in fact, advised the trial court Appellant’s

presence was not necessary.

       {¶29} In answering the questions posed to him by the trial court, the prosecutor,

and defense counsel, Juror No. 2 revealed he and Whitesel worked at the same company,

but in different departments. Juror No. 2 would see Whitesel at company meetings and

described the frequency of their contact as “very seldom.” Juror No. 2 said he did not

associate with Whitesel, did not really talk to him, and it had “been quite a few years”

since he last saw Whitesel. Juror No. 2 also disclosed Whitesel’s ex-girlfriend and/or her

family lived down the road from him, but he did not talk to them and he moved to the area

following Whitesel’s death.     Although Juror No. 2 knew some of Whitesel’s family

members, he had not seen them since school. Juror No. 2 confirmed the limited contact

he had with Whitesel would not impair his ability to keep an open mind.

       {¶30} The trial court did not excuse Juror No. 2 and the trial proceeded. Following

the presentation of evidence, the trial court properly instructed the jury on the law

applicable to the case as well as how to conduct deliberations and complete the verdict

form. The trial court then advised it would be excusing two jurors, one of the alternates

and one of the seated jurors. The trial court explained, “we did have a situation during the

first day of trial where one of the jurors fell asleep for a total of approximately 42 minutes,

and it was noticed by the court, counsel and other jurors, and which was also documented
Ashland County, Case No. 18-COA-036                                                         13


by the court reporter, and because of that, I don’t believe it’s appropriate to keep that juror

on the jury because it would be unfair to the parties.” Trial Transcript at 424. Thereafter,

the trial court excused Juror No. 2. Juror No. 2 did not participate in deliberations.

       {¶31} We find Appellant’s interests were adequately represented by his attorney

who was present and actively examined Juror No. 2. Addressing a similar situation, the

United States Court of Appeals for the Seventh Circuit in Henderson v. Lane (C.A.7,

1980), 613 F.2d 175, 179, rejected a defendant’s claim the failure to secure his

attendance at a proceeding to reinstate an alternate juror was reversible error, finding his

attorney's presence at the proceeding to be “[t]he most obvious barrier to prejudice in * *

* [the] case.” See also, United States v. Brown, supra, 571 F.2d at 987 (defense counsel's

active participation in an in-chamber conference regarding the dismissal of a juror

negated any prejudicial impact that might have resulted from defendant's absence during

the discussion.)

       {¶32} We also find Appellant's attendance at the voir dire would have contributed

little to his defense. The trial court, the prosecutor, and defense counsel thoroughly

examined Juror No. 2 and elicited sufficient information from which the trial court could

determine Juror No. 2 could be impartial.

       {¶33} Accordingly, we find Appellant's absence during the voir dire of Juror No. 2

was not only nonprejudicial under constitutional standards, but was also harmless beyond

a reasonable doubt.
Ashland County, Case No. 18-COA-036                                            14


      {¶34} Appellant’s third assignment of error is overruled.

      {¶35} The judgment of the Ashland County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
