[Cite as Casares v. Mercy St. Vincent Med. Ctr., 2020-Ohio-1651.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


David Casares                                              Court of Appeals No. L-19-1043

        Appellant                                          Trial Court No. CI0201502090

v.

Mercy St. Vincent Medical Center, et al.                   DECISION AND JUDGMENT

        Appellees                                          Decided: April 24, 2020

                                                  *****

        Gary W. Osborne, Jack S. Leizerman and Stephen A. Skiver,
        for appellant.

        Douglas G. Leak and Steven J. Hupp, for appellee James Lewis, M.D.

        Beth A. Wittmann, John S. Wasung and David T. Henderson,
        for appellee Fulton County Health Center.


                                                  *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas from a jury verdict in favor of appellees. For the reasons set forth below, this court

affirms the judgment of the trial court.
       {¶ 2} On April 3, 2015, plaintiff-appellant David Casares, filed a complaint against

defendant-nonappellee Mercy St. Vincent Medical Center and defendants-appellees James

Lewis, M.D. (“Dr. Lewis”) and Fulton County Health Center (“FCHC”), arising from

emergency medical care he received five years earlier. The underlying facts in this

medical malpractice litigation were previously reviewed by this court and will not be

repeated here. Casares v. Mercy St. Vincent Med. Ctr., 6th Dist. Lucas No. L-15-1313,

2016-Ohio-5542.

       {¶ 3} The seven-day trial of this matter commenced on January 28, 2019, with the

voir dire of 27 prospective jurors. The trial court previously ruled that each party would

receive three peremptory challenges pursuant to Civ.R. 47(C). During voir dire a total of

two prospective jurors were challenged for “good cause” by appellant. The first

challenged juror was excused by the trial court, with no objections, but pursuant to R.C.

2313.14(A)(4) after further examination. The second challenged prospective juror was

number nine, Donald Hayward (“Juror 9”), who was not excused for good cause after the

defendants objected and after further examination. Appellant used his first peremptory

challenge to remove Juror 9. To seat a jury of eight and four alternates, appellant used all

three of his peremptory challenges on prospective jurors, as did each defendant, and

appellant used his two peremptory challenges on prospective alternate jurors, as did each

defendant.

       {¶ 4} On February 7, 2019, the jury returned a verdict in favor of defendants-

appellees and against appellant, and the trial court’s judgment entry on jury verdict was




2.
journalized on February 13, 2019. Appellant then filed his notice of appeal setting forth

two assignments of error.

              I. The trial court abused its discretion by granting each defendant

       three peremptory challenges when their interests and defense were

       essentially the same and not antagonistic.

              II. The trial court abused its discretion when it failed to strike juror

       number nine for cause.

       {¶ 5} It was within the trial court’s discretion to address the challenges for cause

prior to the peremptory challenges. Civ.R. 47(B). We will address appellant’s second

assignment of error first.

                       I. Challenging a Potential Juror for Cause

       {¶ 6} Appellate review of the trial court’s determination of whether a prospective

juror should be disqualified for cause is for an abuse of discretion. Berk v. Matthews, 53

Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Abuse of discretion “‘connotes more than

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary

or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When

applying the abuse of discretion standard, we are not free to substitute our judgment for

that of the trial court. Berk at 169.

       {¶ 7} In support of his second assignment of error, appellant argues the trial court

abused its discretion when it failed to strike prospective Juror 9 for cause. Citing former




3.
R.C. 2313.42(J) and 2313.43, appellant argues Juror 9’s answers during voir dire required

the trial court to have even the slightest doubt as to his ability to be fair, impartial, and

entirely unbiased. Appellant argues that Juror 9 questioned his own ability to be

completely unbiased when he admitted coming from a family with many “medical

people” in it and growing up hearing about the importance of malpractice insurance.

Appellant argues Juror 9 further admitted he would not want him on a jury in a medical

malpractice case because he gives the impression of bias towards medical personnel.

Appellant concludes he was prejudiced because Juror 9 was not rehabilitated to the point

of eliminating all vestiges of his declared bias: “Realistically, there can be no true

rehabilitation (changing of a person’s bias) that occurs over a span of a few minutes, and

it borders on fantasy to believe otherwise.”

       {¶ 8} In response, Dr. Lewis argues the trial court did not abuse its discretion

because Juror 9, “an engineer and not a medical professional,” repeatedly and

unequivocally stated as a juror he would be fair, impartial and follow the law and never

stated he was biased. Rather, “[Juror 9] admitted that someone else might have ‘the

impression’ that he would be biased based upon his family’s medical background, [but]

he, himself, would not be biased.” Dr. Lewis further argues the trial court did not err

because it first heard oral arguments pertaining to appellant’s good cause challenge to

Juror 9 and made specific findings supported by the record.

       {¶ 9} In response, FCHC also argues the trial court did not abuse its discretion.

FCHC argues where the trial court was satisfied with Juror 9’s responses during voir dire,




4.
R.C. 2313.17(B)(9) was not violated. The trial court observed Juror 9’s demeanor during

voir dire and had the opportunity to evaluate his credibility when responding to questions.

FCHC further argues Juror 9 consistently reiterated on seven separate occasions, despite

appellant’s efforts to derail, that he could be a fair and impartial juror and would follow

the law as given to him by the court.

       {¶ 10} R.C. 2313.17(B) sets forth a list of “good causes for challenge to any

person called as a juror”:

                (1) That the person has been convicted of a crime that by law renders

       the person disqualified to serve on a jury;

                (2) That the person has an interest in the cause;

                (3) That the person has an action pending between the person and

       either party;

                (4) That the person formerly was a juror in the same cause;

                (5) That the person is the employer, the employee, or the spouse,

       parent, son, or daughter of the employer or employee, counselor, agent,

       steward, or attorney of either party;

                (6) That the person is subpoenaed in good faith as a witness in the

       cause;

                (7) That the person is akin by consanguinity or affinity within the

       fourth degree to either party or to the attorney of either party;




5.
              (8) That the person or the person’s spouse, parent, son, or daughter is

       a party to another action then pending in any court in which an attorney in

       the cause then on trial is an attorney, either for or against any such party to

       another such action;

              (9) That the person discloses by the person’s answers that the person

       cannot be a fair and impartial juror or will not follow the law as given to the

       person by the court.

       {¶ 11} Each of the foregoing nine challenges “shall be considered as a principal

challenge, and its validity tried by the court.” R.C. 2313.17(C). R.C. 2313.17 replaced

former R.C. 2313.42 and 2313.43, which were repealed effective May 22, 2012, pursuant

to Substitute House Bill No. 268 of Ohio’s 129th General Assembly. See State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 94; see also State v.

Phillips, 3d Dist. Wyandot No. 16-13-09, 2014-Ohio-3670, ¶ 82; see also State v.

Harrison, 2015-Ohio-1419, 31 N.E.3d 220, ¶ 32 (3d Dist.).

       {¶ 12} Identical to R.C. 2313.17(C), former R.C. 2313.42 stated, “Each challenge

listed in this section shall be considered as a principal challenge, and its validity tried by

the court.” Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, 873

N.E.2d 290, ¶ 22. The Ohio Supreme Court interpreted “principal challenges” to be the

enumerated “good cause” reasons to challenge a prospective juror listed under former

R.C. 2313.42(A) through (I), now R.C. 2313.17(B)(1) through (8). Id. at ¶ 28. A

“principal challenge” to a prospective juror means that if a court finds the prospective




6.
juror’s disqualification under former R.C. 2313.42(A) through (I), now R.C.

2313.17(B)(1) through (8), to be valid, then there is a conclusive presumption of the

prospective juror’s disqualification, and the trial court must dismiss the prospective juror.

Id. at syllabus. As a result, the prospective juror may not be seated through rehabilitation

or the trial court’s exercise of discretion, even if the prospective juror pledges to be fair.

Id.

       {¶ 13} In contrast to a “principal challenge” the Ohio Supreme Court found that a

“challenge to the favor” permitted a party to assert a challenge when no “principal

challenge” exists, subject to an examination for the purpose of determining whether the

potential juror can be impartial. Id. at ¶ 29.

       {¶ 14} In affirming the distinction between a “principal challenge” and “a

challenge to the favor,” the Ohio Supreme Court declared former R.C. 2313.42(J), now

R.C. 2313.17(B)(9), to be “a challenge to the favor” because it “requires the court to

make a subjective determination about a potential juror’s fairness and impartiality and

therefore requires the exercise of judicial discretion.” Id. at ¶ 1, 38, citing Berk, 53 Ohio

St.3d 161, 559 N.E.2d 1301, at syllabus.

       {¶ 15} The language of former R.C. 2313.42(J) is identical to R.C. 2313.17(B)(9),

which is its replacement. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at

¶ 94. “The following are good causes for challenge to any person called as a juror: * * *

That he discloses by his answers that he cannot be a fair and impartial juror or will not

follow the law as given to him by the court.” Hall at ¶ 21, quoting former R.C.




7.
2313.42(J). The Ohio Supreme Court found that former R.C. 2313.42(J), now R.C.

2313.17(B)(9), was a misplaced “principal challenge” because it was neither part of

common law nor included in an earlier version of the statute. Id. at ¶ 37.

       {¶ 16} We find that in response to appellant’s “good cause” challenge to Juror 9,

after examination by the trial court, the trial court did not find the prospective juror was

disqualified pursuant to R.C. 2313.17(B)(1) through (8). R.C. 2313.17(C). We further

find that appellant’s challenge to Juror 9 pursuant to R.C. 2313.17(B)(9) was subject to

the trial court’s exercise of discretion. After a review of the transcript of voir dire

proceedings, we find Juror 9 was sufficiently rehabilitated during their questioning, and

the trial court’s exercise of discretion was not abused. Jackson v. Sunforest OB-GYN

Assoc., Inc., 6th Dist. Lucas No. L-06-1354, 2008-Ohio-480, ¶ 48.

       {¶ 17} Appellant also argues the trial court should have struck Juror 9 for raising

doubt as to his being entirely unbiased pursuant to former R.C. 2313.43. R.C.

2313.17(D) is the replacement for former R.C. 2313.43. Maxwell at ¶ 94. R.C.

2313.17(D) states:

              any petit juror may be challenged on suspicion of prejudice against

       or partiality for either party, or for want of a competent knowledge of the

       English language, or other cause that may render the juror at the time an

       unsuitable juror. The validity of the challenge shall be determined by the

       court and be sustained if the court has any doubt as to the juror’s being

       entirely unbiased.




8.
      {¶ 18} The transcript of the voir dire proceedings is in the record. Juror 9

introduced himself as a “retired engineer” with “[y]ears of college and no degree.”

Prospective jurors were asked about their “leanings.”

             Q: So is there anyone here that even just a little bit might be leaning

      towards the plaintiff or towards the defendant? I see you nodding sir, is

      that yes or [are] you just listening?

             A: Yes.

             Q: You are leaning one way or the other?

             A: Yes.

             Q: Which way are you leaning, sir?

             A: I tend to come from a background with a lot of medical people in

      it. And my grandfather was a doctor, my mother was a nurse, my aunts

      were all nurses, my uncles were doctors or something. So I grew up

      hearing about medical malpractice insurance and the significant effect that

      it has on the cost of health insurance for everybody. So I question whether,

      you know, I could be completely unbiased. I mean I will certainly try to be

      unbiased.

             Q: Sure. Thank you very much for sharing. I appreciate it. * * *

      And sir, for yours it sounds like it’s actually kind of a family thing that you

      have been raised with, would that be accurate?

             A: Yes.




9.
             Q: Would you say that is kind of like a family value or something

      that has been part of your life basically since you were a child?

             A: Yes.

             Q: So no matter – I mean it’s something that you believe you don’t

      come to opinions lightly, correct?

             A: That’s correct

             Q: Okay. So no matter who would ask you if you could set that

      aside, it would be your belief that you couldn’t set that aside because it’s so

      deeply ingrained?

             A: No, I wouldn’t necessarily say that.

             Q: Okay. And I don’t mean to put words in your mouth.

             A: As I said, I think I can try to be unbiased in this particular case.

      In a similar case I think I can be unbiased.

             Q: Okay. And one thing that I want to kind of ask about because I

      want to make sure we’re clear is the try, you know, we’re all going to try,

      and just like I would try to give that cherry pie, you know, a good, fair

      competition, if I’m already inclined to not believe that that at cherry pie is

      going to be as good, then I wouldn’t be a good judge for that case. So do

      you believe that you would be a good judge for this case?

             A: I could be a judge.




10.
               Q: So a good judge for one side maybe and not a good judge for the

       other side?

               A: I didn’t say that. I think I could be a reasonable judge.

               Q: Sorry, I didn’t mean to cut you off. Did you have something

       else?

               A: I may not be the best. I think I could be unbiased.

               Q: If you were the plaintiff in this case would you want you as a

       juror on this case?

               A: Probably not.

               Q: Okay. Why not?

               A: Because I give the impression that I would be biased towards

       medical personnel and particularly medical malpractice.

               Q: Sure. Thank you. And I appreciate you being honest. I know

       it’s not easy to talk in front of all these people, especially with me trying to

       understand exactly all you’re saying, so I appreciate that. Thank you.

       Anybody else? * * *.

       {¶ 19} We find that Juror 9 immediately contradicted any initial “leaning” towards

“medical people.” We further find that Juror 9 directly and consistently replied that he

could, in fact, be an unbiased juror. He underwent further direct examination regarding

his potential bias.




11.
              Q: Now we heard plaintiff’s counsel asking the questions you

       grew up in a medical family. I have to ask you two very straight-forward,

       simple questions. If his Honor instructs you as a matter of law certain

       facts, certain – not facts – certain ways to address this case. And that you

       are to determine whether the injury was proximately caused by the

       negligence, will you follow those jury instructions?

              A: Yes.

              Q: Okay. When you take an oath as a juror, you swear to be

       unbiased, to be fair to both sides ad fair and impartial. In this case can

       you be fair and impartial or not, just tell us?

              A: Yes.

              Q: All right. And you think you can follow the law and treat both

       sides fairly?

              A: Yes.

       {¶ 20} After the trial court dismissed two jurors pursuant to R.C. 2313.14(A)(4),

appellant then challenged Juror 9 for “good cause,” and a bench discussion occurred.

Appellant argued Juror 9 flipped when he “declared his bias and of course afterwards he

said he could be fair and impartial, but then he said that he would not want him on the

jury if he was a plaintiff. I mean we got all these jurors, there has to be some doubt as to

whether he’s entirely unbiased and under the statute he should be released.” FCHC

responded that Juror 9 “specifically said he would be a reasonable judge in this case. He




12.
said you don’t have to be the best and no one is required to be the best.” The trial court

recalled, “I think he said in response to [Dr. Lewis’ voir dire] he would follow the

instruction of law, he could be fair and impartial. He did say that if he was the plaintiff

would you want me for a juror and he said not, because it may give the impression of

bias, not that he was biased, but it may give the impression of bias.” When the issue was

narrowed to the distinction between Juror 9’s response regarding the perception of bias

versus whether he had bias, the trial court concluded, “Because his exact words were

[‘]give the impression of bias.[’] I think he was – I mean I think he was fairly

rehabilitated here by [Dr. Lewis’ voir dire] questions. I’m going to overrule the objection

or overrule the challenge for cause to [Juror 9].” There were no further challenges for

cause by any party.

       {¶ 21} We find that although appellant believed Juror 9 could never truly shed his

bias, the record supports the trial court’s obvious satisfaction with Juror 9’s responses

that his bias, if any, would not substantially impair the performance of his juror duties.

State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 107. Despite

any factual contradiction between Juror 9’s initial responses and his subsequent

responses, the record shows the trial court resolved those questions of fact and did not

abuse its discretion. Id. at ¶ 110. Since the trial court resolved the questions of fact to its

satisfaction, we will not substitute our judgment, and Juror 9 need not be removed for

cause. Grundy v. Dhillon, 120 Ohio St.3d 415, 2008-Ohio-6324, 900 N.E.2d 153, ¶ 52.




13.
       {¶ 22} We reviewed the record and find the trial court did not abuse its discretion,

and the trial court’s attitude was not unreasonable, arbitrary or unconscionable, when it

denied appellant’s motion to disqualify for good cause Juror 9.

       {¶ 23} Appellant’s second assignment of error is not well-taken.

                     II. Peremptory Challenges of Potential Jurors

       {¶ 24} Appellate review of a trial court’s determination of the scope of voir dire is

for an abuse of discretion. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776

N.E.2d 1061, ¶ 31, holding modified by State v. Downour, 126 Ohio St.3d 508, 2010-

Ohio-4503, 935 N.E.2d 828.

       {¶ 25} In support of his first assignment of error, appellant argues the trial court

abused its discretion when it allowed the defendants a combined total of six peremptory

challenges of prospective jurors while plaintiff was allowed only three. Appellant argues

that a medical malpractice case “poses a greater risk of jurors having strong feelings that

predispose them to biases against these cases” because the overwhelming number of

verdicts are for defendants. Appellant argues that in order for appellant “to get a fair

trial,” not only should the trial court have treated both defendants as one and limited them

to a total of three peremptory challenges between them, but the trial court should also

have allowed appellant’s challenge for good cause of Juror 9 so that appellant could have

used a peremptory challenge on another, unidentified, prospective juror. Appellant

further argues the trial court misapplied Civ.R. 47(C), which does not require the interests

of the defendants to be identical in all respects. Appellant urges this court to find that




14.
“absent a showing of antagonistic interests, peremptory challenges should be limited to

the combined defendants.”

       {¶ 26} In response, Dr. Lewis argues the trial court did not abuse its discretion

when it followed Civ.R. 47(C) and LeFort v. Century 21-Maitland Realty Co., 32 Ohio

St.3d 121, 512 N.E.2d 640 (1987). Dr. Lewis argues the law is clear that in order for the

trial court to order Dr. Lewis and FCHC to a combined total of three peremptory

challenges, their interests or defenses must be identical, such as whether they are

represented by the same attorney, filed joint answers and pleadings, and asserted the

same defenses that “stand or fall together.” Dr. Lewis further argues his interests are not

identical to FCHC where a jury could have found one defendant liable and not the other

because, among other factors, appellant’s claim against Dr. Lewis was medical

negligence while appellant’s claim against FCHC was agency by estoppel, and the jury

received separate jury interrogatories on them. Dr. Lewis argues appellant was not

prejudiced by the trial court’s decision, and the jury that was ultimately empanelled was

fair and impartial.

       {¶ 27} In response, FCHC also argues the trial court did not abuse its discretion.

FCHC argues Civ.R. 47(C) is clear that FCHC and Dr. Lewis are not “essentially the

same” where “the defendants proceeded separately throughout the litigation through

separate counsel, and asserted defenses that do not necessarily stand or fall together.”

FCHC argues: “Importantly, [FCHC] asserted unique defenses that, if proved, would

absolve it from liability, potentially to the detriment of Dr. Lewis.” FCHC argues the




15.
jury “could find against Dr. Lewis and not against FCHC], depending on their

interpretation of the evidence presented and application of the law.” FCHC argues

appellant never requested the trial court grant it more peremptory challenges. FCHC

further argues that any trial court error in failing to dismiss Juror 9 was harmless because

appellant was not prejudiced where the jurors who sat were not shown to be prejudiced or

challenged for good cause.

       {¶ 28} Appellant filed his motion to limit peremptory challenges on January 9,

2019, and argued that FCHC should not independently receive three peremptory

challenges because Civ.R. 47(C) authorized treating FCHC as “essentially the same” as

Dr. Lewis because their interests were identical. Appellant further argued, “Unless the

underlying claim of negligence is proven against defendant Lewis, there can be no

liability against defendant [FCHC], who is along for the ride only under the theory of

vicarious liability.” FCHC opposed the motion, citing Civ.R. 47(C) and the LeFort

factors affirming its entitlement to three peremptory challenges of its own.

       {¶ 29} In its January 28, 2019 journalized judgment entry, the trial court stated:

              Subjudice, the Court is not persuaded that Defendants’ interests are

       “essentially the same,” nor does it find that their defenses stand or fall

       together. Contrary to Plaintiff’s suggestion that FCHC is merely “along for

       the ride” with Dr. Lewis, the record is quite clear that Defendants have

       employed and maintained separate counsel and have separately participated

       in this litigation since its inception in 2012. Although both Defendants




16.
       stand to benefit from a verdict in Dr. Lewis’ favor, there is clearly no

       reciprocal benefit to Lewis in the event FCHC prevails. It is undisputed

       that Dr. Lewis was acting as an independent contractor when he rendered

       treatment to Plaintiff at FCHC, so Ohio law does not require the fact finder

       to find FCHC liable in the event it determines that Dr. Lewis’ alleged

       negligence proximately caused Plaintiff’s injuries. Significantly, there has

       already been an appellate determination in this matter that a factual

       question exists as to FCHC’s potential liability under an ostensible agency

       theory should Dr. Lewis not prevail on the claim against him. Accordingly,

       it cannot be fairly said that Defendants’ defenses stand or fall together. The

       Court finds that each Defendant is entitled to its full allotment of three

       peremptory challenges. (Footnote omitted.)

       {¶ 30} The law on peremptory challenges in civil litigation is found in Civ.R.

47(C), which states:

              In addition to challenges for cause provided by law, each party

       peremptorily may challenge three prospective jurors. If the interests of

       multiple litigants are essentially the same, ‘each party’ shall mean ‘each

       side.’ * * * A prospective juror peremptorily challenged by either party

       shall be excused.

       {¶ 31} This court previously determined that where the interests of multiple

defendant parties are essentially different or antagonistic, then they are entitled to the full




17.
number of peremptory challenges. Bernal v. Lindholm, 133 Ohio App.3d 163, 175, 727

N.E.2d 145 (6th Dist.1999), citing LeFort, 32 Ohio St.3d at 125, 512 N.E.2d 640 (relying

on language from former Civ.R. 47(B), now 47(C)). It is well established that each of

the defendants must have “identical interests * * * to be considered as one party.” Id. at

176; Nieves v. Kietlinski, 22 Ohio St.2d 139, 258 N.E.2d 454 (1970), paragraph one of

the syllabus. This court applied a number of factors before concluding the interests of

each defendant were not identical: (1) whether the defendants employed the same

attorney to represent them, (2) whether each defendant filed separate answers and

defenses to the complaint, (3) whether the defendants filed separate pleadings or

motions, (4) whether each defendant could attempt to introduce separate evidence to

prove that its conduct did not constitute the causes of action alleged in the complaint,

(5) whether a jury could have found one defendant liable and not another (the so-called

whether “the defenses asserted did not necessarily stand or fall together,” and

(6) whether the plaintiff was prejudiced by the trial court’s decision granting three

peremptory challenges to each defendant. Bernal at 175-176. Civil trials are not

mandated to have an equal number of peremptory challenges for each side. Id. at 176.

        {¶ 32} This court previously held that a jury could find FCHC independently

liable under the doctrine of agency by estoppel for the negligent acts of Dr. Lewis, an

independent contractor. Casares, 6th Dist. Lucas No. L-15-1313, 2016-Ohio-5542, at

¶ 22.




18.
       {¶ 33} We find that during voir dire, appellant used his first peremptory challenge

to remove Juror 9 without first objecting on the record that doing so would cause him

prejudice. Failure to object when there was an opportunity to do so waives all but plain

error. LeFort at 123-124. We do not find the existence of plain error that is necessary to

prevent a manifest miscarriage of justice. Id. at 124.

       {¶ 34} Appellant was not prejudiced because the trial court’s decision to deny

appellant’s challenge of Juror 9 for “good cause” did not force appellant to exhaust his

peremptory challenges since he still had two more available to him prior to seating the

jury. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87. “Thus,

‘[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial

only if the accused eliminates the challenged venireman with a peremptory challenge and

exhausts his peremptory challenges before the full jury is seated.’” (Emphasis in

original.) Id., quoting State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).

       {¶ 35} This court has previously found no prejudice when an appellant used

peremptory challenges after challenges for good cause were denied, and no abuse of

discretion by the trial court was found. Jackson, 6th Dist. Lucas No. L-06-1354, 2008-

Ohio-480, at ¶ 49-51. The real question for a reviewing court on the issue of prejudice

and the use of peremptory challenges is whether substantial justice has been done, which

we answer in the affirmative in this case. Grundy, 120 Ohio St.3d 415, 2008-Ohio-6324,

900 N.E.2d 153, at ¶ 33.




19.
       {¶ 36} We reviewed the record and find the trial court did not abuse its discretion,

and the trial court’s attitude was not unreasonable, arbitrary or unconscionable, when it

denied appellant’s motion to limit the total number of peremptory challenges between

both appellees.

       {¶ 37} Appellant’s first assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 38} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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