[Cite as State v. Whatley, 2014-Ohio-1126.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 13CA26
                                               :
JAMES L. WHATLEY, JR.                          :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Guernsey County Court
                                                   of Common Pleas, Case No. 13-CR-03



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            March 10, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

DANIEL G. PADDEN                                   CHANDRA L. ONTKO
GUERNSEY CO. PROSECUTOR                            665 Southgate Parkway
STEPHANIE L. MITCHELL                              Cambridge, OH 43725
139 West 8th St.
P.O. Box 640
Cambridge, OH 43725
Guernsey County, Case No. 13CA26                                                       2



Delaney, J.

       {¶1} Defendant-Appellant James L. Whatley, Jr. appeals from the July 30, 2013

Judgment Entry of Sentence of the Guernsey County Court of Common Pleas. Appellee

is the State of Ohio.

                         FACTS AND PROCEDURAL HISTORY

           Maigen Blanchard Reaches Out to Tyler Burrell and Tells Him She Knows
                              Where to Find Cash and Drugs

       {¶2} Maigen Blanchard lived in Cambridge, Ohio with her stepmom, Pam Pifer.

Brock Dilley, Blanchard’s boyfriend and the father of her children, was incarcerated.

Blanchard decided to reach out to her former boyfriend, Tyler Burrell, through

Facebook, and sent Burrell a message on June 20, 2012, asking him to come visit her

in Cambridge. Burrell responded on Thursday, June 21, 2012, and came to Cambridge

from Zanesville with his friend Anjomo “Boomer” Churchill. Churchill drove the pair to

Cambridge in a light gold 2011 Chevy Cruze. Churchill was known to serve as Burrell’s

driver because Burrell did not have a valid license.

       {¶3} Burrell and Churchill spent several hours in Cambridge that Thursday.

They drove around with Blanchard and Pifer, “looking at houses.”           Burrell asked

Blanchard, “Who is the white boy who drives an Avalanche with 30-day tags who’s

always over in Zanesville?” Blanchard told him it was Christopher Morrison, a friend of

Brock Dilley’s. She offered to point out where Morrison lived. She also told Burrell “she

heard” Morrison had lots of money and was known to keep cash in his sock drawer and

drugs in cereal boxes.
Guernsey County, Case No. 13CA26                                                       3


      {¶4} On that first visit to Cambridge, Blanchard showed Burrell and Churchill

the location of Morrison’s apartment complex, Coventry Estates, located on U.S. Route

22, east of State Route 77, in Guernsey County.          Burrell and Churchill dropped

Blanchard off and didn’t return that day. She thought they were going to go to a party

together on Friday, but Burrell didn’t return calls and didn’t pick her up as they had

planned. Burrell told her he’d come over on Saturday, June 23.

      {¶5} In the meantime, Burrell started gathering accomplices, telling them he

knew of a “lick” (robbery) in Cambridge and asking if they wanted to be involved. Elgin

Mitchell and Deondre Crosby signed on and started planning. Patience Sharrer drove

Mitchell and Crosby to meet up with Burrell, who told Mitchell he needed to pick up “his

dude,” whom Mitchell understood to be an unnamed accomplice from Columbus.

                     Blanchard and Burrell Direct the Group to “Hit a Lick”

      {¶6} Saturday night, June 23, 2012, Blanchard was hanging out in Cambridge

with Pifer and her friend Whitney Ford. She received multiple calls from Burrell on the

landline phone, which Pifer could overhear, including discussion about robbing

someone. Ford also heard discussion that people were “on their way,” and Blanchard

said she could show them where Morrison lived.

      {¶7} Around 2:00 a.m., the same light-colored Chevy Cruze pulled up and

parked in front of the house, again driven by Churchill, with Burrell in the front

passenger seat [the “Burrell car”]. Pifer and Ford noticed a second, darker car following

the Burrell car, which pulled past the house and parked down the street. Alarmed, Pifer

told Blanchard that if she got in the car, not to bother coming back.         Heedless,

Blanchard approached the Burrell car and attempted to open the rear driver’s-side door.
Guernsey County, Case No. 13CA26                                                        4


A man inside, previously unseen, held the door shut. She went around the other side,

got in the car, and drove off. The dark car followed closely behind. Pifer and Ford

watched both cars stop at the stop sign and turn left, headed in the direction of Coventry

Estates.

                Christopher Morrison and Justain Nelson Celebrate a Birthday

       {¶8} June 23, 2012 was Christopher Morrison’s birthday. He lived in Apartment

C in a four-apartment building at Coventry Estates with his pregnant fiancée, Nijier

Thomas.      The two spent the day together at the apartment and gathered food and

liquor for a planned birthday cookout later that evening in Zanesville. Morrison and

Thomas headed to the party in Zanesville around 6:00 p.m. in Morrison’s green

Avalanche.

       {¶9} Present at the birthday party were Justain Nelson, Morrison’s best friend,

and Nelson’s mother, Theresa Glover. The party lasted until around 11:00 p.m., then

some of the guests went to the “U Bar,” a location in Zanesville. Morrison, Thomas, and

Nelson were in the Avalanche and stayed in the parking lot. Morrison and Thomas

argued because he had been drinking and she didn’t want him to drive. Thomas ended

up staying behind at the “U Bar” with friends while Morrison and Nelson drove off in the

Avalanche. Glover saw her son in the truck with Morrison.

       {¶10} Around 1:15 a.m., Morrison called Thomas to say he was home.

                The Burrell Car and the Sharrer Car Drive by Coventry Estates

       {¶11} The Chevy Cruze was driven by Churchill; Burrell was in the front

passenger seat; Blanchard was behind him in the back seat, and a fourth black male

was in the rear driver’s-side seat. Churchill and Blanchard did not identify this man;
Guernsey County, Case No. 13CA26                                                       5


Blanchard said he had “old braids” which were partially grown out and spoke to

someone on an “Obama phone.” Churchill said the man did not speak but at one point

Burrell had mentioned his name was “Zone.”

       {¶12} The black car following the Burrell car was a rented Mazda driven by

Patience Sharrer [the “Sharrer car”]. Also in the car were Deondre Crosby and Elgin

Mitchell.

       {¶13} The two cars drove past Coventry Estates. Blanchard pointed out the

apartment of Christopher Morrison. Morrison’s Avalanche was parked in the rear of the

building. Both cars turned around, pulled down a side street, and stopped. Blanchard

and Burrell directed Mitchell and Crosby to the apartment. The man with “old braids”

got out of the Burrell car and into the Sharrer car.

       {¶14} Burrell, Churchill, and Blanchard drove off and proceeded to spend the

next hour driving around Cambridge.

       {¶15} At trial, Elgin Mitchell identified appellant as the man from Columbus, the

individual with “old braids” who got into Sharrer’s car. Sharrer drove; Crosby was in the

front passenger seat; Mitchell and appellant were in the back seat. The Sharrer car

headed back toward Coventry Estates; Burrell called again to say which apartment it

was.

       {¶16} Sharrer pulled over and stopped. Mitchell, Crosby, and appellant exited

the car, climbed over a guardrail, and hid near a tree near the apartment building. They

could see into the apartment through the blinds; two men appeared to be asleep inside,

on two separate couches.
Guernsey County, Case No. 13CA26                                                      6

                   The Home Invasion and Murders: Elgin Mitchell’s Account

        {¶17} Mitchell said he had no weapon on him and didn’t see a weapon on

Crosby or appellant prior to the robbery. Appellant put on a ski mask he brought along.

        {¶18} Appellant rammed open the front door with his arms and was the first to

enter the apartment, followed by Crosby and Mitchell. Mitchell saw appellant now had a

black pistol he thought was a .9 millimeter semi-automatic. Crosby proceeded directly

up the stairs inside the door to the bedrooms. Appellant went towards Justain Nelson,

the man sleeping on the couch against the wall. Christopher Morrison was on a couch

in front of the window. Mitchell stood back, guarding the door.

        {¶19} Crosby came back downstairs after a very short time, now holding a .22

revolver, asking Morrison “where the money at (sic).” Morrison responded he didn’t

know what Crosby was talking about. Appellant ran into the kitchen and started rifling

through cereal boxes, then came back into the living room and again stood in front of

Nelson. Nelson told Morrison “Just give it up” and Morrison said again “I don’t know

what you’re talking about.” Crosby then shot Morrison in the face.

        {¶20} Nelson stood up and tried to run, crashing through the sliding glass doors

in the rear of the apartment, off the kitchen. Appellant shot Nelson in the back as he

fled.

                    The Burrell Car Returns to the Area of Coventry Estates

        {¶21} During the home invasion and murders, the Burrell car drove around

Cambridge. Burrell was getting calls on his cell phone and eventually told Churchill to

head back in the general direction of Coventry Estates. Someone on the phone told

Burrell he saw the car’s headlights. The “same guy from before,” the unidentified black
Guernsey County, Case No. 13CA26                                                          7


male, got into the backseat of the Burrell car and they drove to Zanesville. Churchill

said the man had changed clothes.

       {¶22} Churchill later testified there was no conversation in the car about what

happened during the robbery. He claimed to know nothing until the next day when

Burrell told him “when they did that they killed those people.”

       {¶23} Churchill would later return to the spot where he picked up the man, with

detectives, telling them the man said he thought he lost his gun there.

                             The Neighbors React after the Murders

       {¶24} Neighbors heard commotion shortly after 2:00 a.m. on Sunday, June 24,

2012 that sounded first like someone kicking a door in and then like someone running

up and down the stairs of Apartment C. Then witnesses heard several gunshots, then

silence.   Neighbors looked out their windows and saw no one in the immediate

aftermath of the shots, so several called 911 and left their apartments to investigate.

       {¶25} They found Christopher Morrison in the front of the apartment complex, on

the ground, still breathing but covered in blood. Morrison died at the scene shortly

thereafter as city police, sheriff’s deputies, and emergency medical personnel arrived.

       {¶26} Troopers discovered Justain Nelson in the backyard of the apartment

complex, lying motionless on the ground, moaning, with blood on his chest, shirt, and

face. He was transported for medical treatment but died at the hospital.

                         Both Victims Die of Multiple Gunshot Wounds

       {¶27} The autopsy performed on Christopher Morrison revealed five gunshot

wounds, including one near his left eye, neck, shoulder, chest, and thigh.         Justain

Nelson sustained four gunshot wounds: to the middle of his back, between his belt line
Guernsey County, Case No. 13CA26                                                          8


and his shoulders; his left lower abdomen, his left thigh, and his left buttock. The bullets

recovered from the body of Morrison were a different size, shape, and caliber than the

bullets recovered from the body of Nelson.         Nelson also sustained sharp, incised

wounds to his right palm, and scrapes and abrasions to his elbows, forearms, knee, and

heel, consistent with running and falling through glass. Toxicology tests on both victims

revealed no evidence of any illicit drug use; both men’s blood tested positive for

beverage alcohol.

       {¶28} Both victims died of multiple gunshot wounds. The coroner opined that in

both cases, death was not necessarily instantaneous: both victims were capable of

running a short distance, then passing out and bleeding to death from their wounds,

consistent with the scene discovered by neighbors, law enforcement, and emergency

medical personnel in which both men were found short distances from the apartment,

linked by trails of blood.

                                        The Investigation

       {¶29} In the immediate aftermath of the murders, witnesses came forward.

Family members of the victims gathered at the crime scene and provided Detective

Williams of the Guernsey County Sheriff’s Department with the names of Maigen

Blanchard and Tyler Burrell. During the day more people called in reporting Blanchard’s

involvement, and Blanchard herself called Williams around 3:30 p.m. Sunday, initially

denying her role.

       {¶30} Law enforcement began a series of interviews with suspects they were

able to identify, starting with Blanchard. Over a series of interviews, Blanchard was

initially deceptive, prompting police to bring in her incarcerated boyfriend, Brock Dilley,
Guernsey County, Case No. 13CA26                                                       9


to convince her to cooperate. Blanchard then provided the names of Boomer Churchill

and Tyler Burrell, and stated there was a second black car driven by a skinny white

female containing two black males she didn’t know. She also stated a third unknown

black male arrived at her stepmother’s house in the Burrell car; she believed this person

to be Burrell’s associate from Columbus.

       {¶31} Williams interviewed Boomer Churchill, who provided the names of

Deondre Crosby, Elgin Mitchell, and Patience Sharrer. He, too, mentioned an unknown

black male in the group, a friend of Burrell’s from Columbus, possibly known by the

nickname “Zone.”

       {¶32} Williams used the suspects’ cell phone records to track down multiple calls

the night of the murders with a 614 area code number. The subscriber to this number is

Christine Pollard, the mother of appellant James Whatley, Jr. and Jamar Whatley,

appellant’s brother who lives in Zanesville. The phone number relates to a government-

issued “Obama phone.” The cell phone records also put the user of the Pollard phone

in the immediate vicinity of Coventry Estates on the night of the murders. The Ohio

Bureau of Criminal Investigation (BCI) reported that DNA tests on a nylon cap found

during evidence collection came back with a CODIS hit matching appellant. Williams

also learned appellant’s Facebook alias is “War Zone.” Another number identified in the

cell phone traffic from the night of the murders was traced to Nicole Groves, mother of

two of appellant’s children.

       {¶33} Boomer Churchill offered to take detectives to the area where he picked

up the unknown Columbus accomplice after the murders. In the tall weeds and grass
Guernsey County, Case No. 13CA26                                                            10


around this wooded area, detectives found clothing, a holster, and a black Smith and

Wesson .9 millimeter semi-automatic pistol.

       {¶34} The BCI firearms expert testified State’s Exhibit O, the bullet recovered

from the body of Justain Nelson, could not be positively identified as having come from

the Smith and Wesson .9 millimeter, but it could not be ruled out, either.

                     The Home Invasion and Murders: Appellant’s Account

       {¶35} Appellant was the only defense witness at trial. He testified he was at his

brother’s house in Zanesville on Friday, June 22, 2012 when Tyler Burrell came over

and mentioned “licks” that he knew of, asking appellant whether he wanted to be

involved. That night, Burrell showed up with Churchill, they picked up appellant and two

other unknown males, and drove around looking at potential robbery sites. Each site

that night was ruled out for various reasons, but Burrell stated he still had the possibility

of something else: he called a girl, put her on speakerphone, and she said “it’s in there.”

Burrell then dropped off appellant at his brother’s house.

       {¶36} The next evening, Saturday, June 23, Burrell returned and asked if

appellant wanted to take a look at something else; there would be $60,000 in cash and

no guns involved. Appellant ripped two t-shirt sleeves off a work shirt to cover his face

with; he denied wearing a ski mask at any point. Burrell and Churchill arrived very early

Sunday morning to pick him up; Churchill drove and Burrell was on the phone off and

on. They were followed by another car. They pulled up at a house, a girl came out and

tried to get in the Churchill car; at first appellant resisted letting her into the car because

he was angry that Burrell was involving more people.
Guernsey County, Case No. 13CA26                                                       11


       {¶37} Both cars proceeded toward Coventry Estates and Burrell and Blanchard

pointed out the target apartment.     At some point, appellant learned Burrell had no

intention of entering the apartment himself and appellant was angry because Burrell

wanted others to commit the robbery he set up.

       {¶38} Appellant did not know the men in the dark car. Throughout his testimony

he referred to Mitchell as “the taller one” and Crosby as “the shorter one.” The three lay

on the ground by a tree outside the apartment and could see through the blinds that two

people were inside. (Appellant stated he was told no one would be there.) He noticed

Mitchell had a gun in his hand.

       {¶39} Appellant stated he opened the front door of the apartment easily by

hitting it with his arms.   Appellant remained outside the apartment at first; Mitchell

entered, went to Nelson, woke him, and made him lay on the ground; Crosby ran

upstairs and very quickly came back down with a gun in his hand. Morrison then sat up

on the other couch and Crosby pushed him back down.               Appellant entered the

apartment because he didn’t want to stay outside. Mitchell told appellant to close the

blinds and he did so. Appellant stated he was in the process of closing the apartment

door when he heard “pow, pow, pow” and he took off running away from the apartment.

       {¶40} Outside, he called Burrell to say “Those dudes started shooting.”         He

asked the Burrell car to come back to pick him up because the Sharrer car was gone.

The Burrell car came back for him. Appellant said he told Burrell, Blanchard, and

Churchill what happened in the apartment and was very upset and angry. He told

Churchill to drop him off in an alley in Zanesville because he didn’t want anyone in the

group to know where “his people” lived.
Guernsey County, Case No. 13CA26                                                       12

                         “The First One on the Bus gets the Best Seat”

       {¶41} At trial Det. Williams acknowledged the evidence tying appellant to the

murders is circumstantial; the only testimony placing a gun in appellant’s hand is

Mitchell’s. When asked, Williams agreed he has heard the axiom “The first one on the

bus gets the best seat.” Appellant’s accomplices entered negotiated guilty pleas and in

exchange for their truthful testimony appellee will not object to judicial release earlier

than the stated terms: Megan Blanchard received a 10-year prison term; Boomer

Churchill a 6-year prison term; Tyler Burrell a 15-year prison term; and Elgin Mitchell an

11-year prison term. Patience Sharrer was not criminally charged and failed to appear

at trial upon subpoena. Deondre Crosby apparently has not yet been tried; the record is

silent as to the outcome of his indictment.

                         Conviction and Sentence: Life Without Parole

       {¶42} Appellant was found guilty of one count of complicity to aggravated

murder with a firearm specification (Count I) for the death of Christopher Morrison. He

was found guilty of one count of aggravated murder with a firearm specification (Count

II) for the death of Justain Nelson. He was also found guilty of aggravated robbery

(Count III) and aggravated burglary (Count IV), both with firearm specifications. The

parties agreed Counts III and IV merged into Counts I and II for sentencing purposes,

and appellant could only be sentenced upon one firearm specification.

       {¶43} On Count I, complicity to aggravated murder, appellant was sentenced to

a prison term of 25 years to life.     On Count II, aggravated murder, appellant was

sentenced to life in prison without the possibility of parole. Upon the single firearm

specification, he received a consecutive term of 3 years.
Guernsey County, Case No. 13CA26                                                      13


      {¶44} Appellant now timely appeals from the judgment entry of his conviction

and sentence.

      {¶45} Appellant raises two assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶46} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

ORDER THE STATE OF OHIO TO PROVIDE A TRANSCRIPT OF FORMER

TESTIMONY GIVEN BY A CODEFENDANT AT THE TIME OF HER NEGOTIATED

PLEA AND AT THE TIME OF HER TESTIMONY BEFORE THE GRAND JURY.”

      {¶47} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT REMOVING

A JUROR DUE TO HER SIGNIFICANT COUGHING AND ORDERING THAT AN

ALTERNATE       JUROR     SERVE     IN   HER    PLACE     BECAUSE       THE    JUROR’S

SIGNIFICANT COUGHING PREVENTED THE DEFENDANT FROM HAVING A FAIR

TRIAL.”

                                      ANALYSIS

                                           I.

      {¶48} In his first assignment of error, appellant argues he should have been

provided with the grand jury testimony of Maigen Blanchard. We disagree.

      {¶49} Upon direct examination, describing events leading to the murders,

Blanchard stated after she was picked up by the Burrell car, they proceeded to Coventry

Estates followed by the Sharrer car, and when she pointed out Christopher Morrison’s

apartment, Burrell placed a call to someone in the other car giving them directions about

which apartment it was. Further, after the Burrell car containing Burrell, Churchill, and

Blanchard drove away from Coventry Estates to drive around Cambridge, Burrell
Guernsey County, Case No. 13CA26                                                       14


received multiple calls “from [appellant]” stating the Sharrer car had left him so the

Burrell car needed to return and pick him up. Appellant’s trial counsel objected stating

“all this is new to me,” and appellee responded every prior statement of Blanchard was

provided in discovery.      Defense trial counsel clarified the difference in Blanchard’s

testimony was her statement that she went to Coventry Estates on the night of the

murders and appellant called Burrell; counsel said he was never advised of any prior

statement to this effect.

       {¶50} The trial court noted Blanchard made four statements to law enforcement,

all of which the defense was provided with, and defense counsel could cross-examine

accordingly. Appellee mentioned he did not have the grand jury testimony transcribed

and defense trial counsel argued he had now demonstrated a particularized need for

the grand jury testimony.      The trial court disagreed and ruled the matter could be

adequately explored with cross examination.        Appellant now argues the grand jury

testimony should have been provided.

       {¶51} Ohio Crim. R. 6(E) provides, in part, that “[d]eliberations of the grand jury

and the vote of any grand juror shall not be disclosed.” However, if the defense shows a

“particularized need” for disclosure that outweighs the need for secrecy, all relevant

portions of a grand jury transcript should be produced. State v. Greer, 66 Ohio St.2d

139, 420 N.E.2d 982 (1981), paragraph two of the syllabus. A “particularized need”

exists “when the circumstances reveal a probability that the failure to provide the grand

jury testimony will deny the defendant a fair trial.” State v. Davis, 38 Ohio St.3d 361,

365, 528 N.E.2d 925 (1988). A claim of particularized need cannot be replete with

speculation and innuendo. State v. Stojetz, 84 Ohio St.3d 452, 460, 1999-Ohio-464, 705
Guernsey County, Case No. 13CA26                                                       15


N.E.2d 329. The decision whether to release grand jury testimony “is within the

discretion of the trial court.” Greer, supra, at paragraph one of the syllabus. A decision

to deny release will not be reversed absent an abuse of discretion. State v. Brown, 38

Ohio St.3d 305, 308, 528 N.E.2d 523 (1988). In order to find an abuse of discretion, the

reviewing court must determine that the trial court’s decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶52} The claim of particularized need in this case consists entirely of

speculation. Appellant did not articulate or demonstrate any particularized need for

grand jury testimony. See, State v. Cutts, Stark App. No. 2008CA000079, 2009-Ohio-

3563, appeal not allowed, 123 Ohio St.3d 1509, 2009-Ohio-6210, 917 N.E.2d 812, cert.

denied by Cutts v. Ohio, 560 U.S. 904, 130 S.Ct. 3276, 176 L.Ed.2d 1183; see also,

State v. Jacocks, 5th Dist. Stark No. 2002CA00359, 2003-Ohio-6839 ¶ 111-112, appeal

not allowed, 102 Ohio St.3d 1445, 2004-Ohio-2263, 808 N.E.2d 397.

       {¶53} Further, impeachment through material inconsistencies may be a proper

basis for disclosure of grand jury testimony, but that purpose alone is not sufficient.

State v. Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201(1971). The claim that a witness's

grand jury testimony may differ from trial testimony is insufficient to show a

particularized need. State v. Henness, 79 Ohio St.3d 53, 62, 679 N.E.2d 686 (1997).

       {¶54} Appellant speculates on appeal (and at trial) Blanchard’s grand jury

testimony may have contained some inconsistency. As we have previously recognized,

“the mere fact that the testimony before the grand jury may contain inconsistencies

does not rise to the level of a particularized need.” State v. Harper, 5th Dist. Guernsey
Guernsey County, Case No. 13CA26                                                          16

No. 13 CA 15, 2013-Ohio-3897 ¶ 22, citing State v. Cherry, 107 Ohio App.3d 476, 478–

479, 669 N.E.2d 45 (5th Dist.1955). On the record before us, we find the trial court did

not abuse its discretion in ruling cross-examination was an adequate remedy for testing

alleged inconsistencies in Blanchard’s statements.

       {¶55} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶56} In his second assignment of error, appellant argues the trial court abused

its discretion by not removing a juror due to “significant coughing.” We disagree.

       {¶57} On page 528 of the trial transcript, the trial court notes Juror 12 is having a

coughing fit and asks whether she is able to proceed, explaining they can take a break

or substitute an alternate. The juror replies she is able to continue. Later, after more

testimony and a recess, the trial court notes Juror 12 may have discovered she can’t

continue. Juror 12 states she is still coughing and losing her voice. (T. 545). The

prosecutor states he didn’t notice any coughing at all and wants her to stay; defense

counsel states she could be excused. The prosecutor requests a voir dire of the jury

prior to dismissing Juror 12.

       {¶58} The jurors on either side of Juror 12 state the coughing is not bothering

them and they are able to hear the proceedings with no trouble; the entire jury is polled

as to whether they are affected by the coughing and they unanimously vote no, they are

not affected at all. (T. 549). The trial court therefore permitted Juror 12 to remain on

the jury without objection, a decision which appellant asserts denied him a fair trial.

       {¶59} Replacement of jurors with alternates is wholly within the trial court’s

discretion and is addressed by a statute and the Criminal Rules. R.C. 2945.29 states:
Guernsey County, Case No. 13CA26                                                        17


             If, before the conclusion of the trial, a juror becomes sick, or for

             other reason is unable to perform his duty, the court may order him

             to be discharged. In that case, if alternate jurors have been

             selected, one of them shall be designated to take the place of the

             juror so discharged. If, after all alternate jurors have been made

             regular jurors, a juror becomes too incapacitated to perform his

             duty, and has been discharged by the court, a new juror may be

             sworn and the trial begin anew, or the jury may be discharged and

             a new jury then or thereafter impaneled.

       {¶60} Crim.R. 24(G)(1) provides in pertinent part, “Alternate jurors in the order in

which they are called shall replace jurors who, prior to the time the jury retires to

consider its verdict, become or are found to be unable or disqualified to perform their

duties.” It is up to the trial court to determine the point at which a juror is unable to

perform her duties. “Whether a juror is unable to perform his duty is a determination

that lies within the trial court's discretion.” State v. Mitchell, 5th Dist. Muskingum No.

CT2006-0090, 2007-Ohio-5519, ¶ 57, appeal not allowed, 117 Ohio St.3d 1424, 2008-

Ohio-969, 882 N.E.2d 445, and reopened on other grounds, 5th Dist. Muskingum No.

CT2006-0090, 2009-Ohio-5251, appeal not allowed, 124 Ohio St.3d 1476, 921 N.E.2d

247, 2010-Ohio-354. In order to find an abuse of discretion, the reviewing court must

determine that the trial court’s decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore, supra, 5 Ohio St.3d at 219.

       {¶61} The trial court did not abuse its discretion in permitting Juror 12 to remain

upon the jury. The juror stated she was able to continue and the entire panel was
Guernsey County, Case No. 13CA26                                                         18


unanimously unaffected by her coughing. Moreover, no objection was raised to the trial

court’s decision, and we find no plain error in the trial court’s decision to allow Juror 12

to remain on the panel.

       {¶62} Appellant’s second assignment of error is overruled.

                                      CONCLUSION

       {¶63} Appellant’s two assignments of error are overruled and the judgment of

the Guernsey County Court of Common Pleas is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
