[Cite as State v. Kraus, 2013-Ohio-393.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     GREENE COUNTY

STATE OF OHIO                                  :
                                               :     Appellate Case No. 2011-CA-35
        Plaintiff-Appellee                     :
                                               :     Trial Court Case No. TRC 1003814
v.                                             :
                                               :
DAVID D. KRAUS                                 :     (Criminal Appeal from
                                               :     (Fairborn Municipal Court)
        Defendant-Appellant                    :
                                               :
                                            ...........

                                           OPINION

                             Rendered on the 8th day of February, 2013.

                                            ...........

BETSY A. DEEDS, Atty. Reg. #0076747, Fairborn Prosecutor’s Office, 510 West Main
Street, Fairborn, Ohio 45324
        Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. #0074329, Murr, Compton, Claypoole & Macbeth, 401 East
Stroop Road, Kettering, Ohio 45429
       Attorney for Defendant-Appellant

                                           .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant David D. Kraus appeals from his convictions and

sentence upon one charge of Operating a Motor Vehicle While Under the Influence, in
                                                                                           2


violation of R.C. 4511.19(A)(1)(a); and one charge of Operating a Motor Vehicle While

Under the Influence, Refusing a Chemical Test, with a Prior Conviction of OVI within the

past Twenty Years, in violation of R.C. 4511.19(A)(2). Kraus contends that the trial court

erred by overruling his motion to dismiss the charges upon speedy trial grounds, due to a

six-month interval that elapsed between the time his first trial ended in mistrial and the time

his second trial commenced. Kraus also contends that the trial court committed plain error by

accepting a written verdict of guilty on the second charge despite an anomaly in the verdict

form.

        {¶ 2}   We conclude that trial court did not err in overruling Kraus’s motion to

dismiss the charges on speedy-trial grounds.        The record does not demonstrate that the

six-month interval between the mistrial and the re-trial sufficiently prejudiced Kraus to

warrant dismissal of the charges. Kraus was not incarcerated during the interval, and has not

demonstrated that he was subject to exceptional anxiety during that period. The record does

not demonstrate that Kraus’s ability to put on a defense to the charges was adversely affected

to any significant degree by reason of the delay.

        {¶ 3}   The jury was properly instructed on all of the elements it was required to find

beyond reasonable doubt to convict Kraus of a violation of R.C. 4511.19(A)(2). One, and

only one, of those elements – a prior conviction for OVI within the last 20 years – was set out

on the jury verdict form, below the general verdict, as follows: “The Defendant was/was not

(circle one) previously convicted of OVI within 20 years of the offense.” Neither “was” nor

“was not” was circled. Kraus did not object to the verdict form. Neither did Kraus raise this

issue when the verdict was returned. This anomaly in the verdict form does not rise to the
                                                                                            3


level of plain error. There was no manifest miscarriage of justice, in view of the fact that

Kraus stipulated to the admission of a certified copy of his conviction for OVI on June 21,

2007. He also acknowledged, during his direct examination, that he had been convicted of

OVI in 2007.

       {¶ 4}    Accordingly, the judgment of the trial court is Affirmed.



     I. The Events Culminating in Kraus’s Being Charged with Two OVI Offenses

       {¶ 5}    After Kraus left Shananigan’s, a pool hall and bar in Fairborn, at about 1:00 in

the morning one night in mid-April, 2010, he was stopped by State Trooper Dexter Howard.

Howard had noticed that Kraus was “drifting” within his lane continuously, and was drifting a

few inches over the broken white line occasionally.         When Kraus made a turn at an

intersection without signaling, Howard activated his overhead lights and stopped Kraus.

       {¶ 6}    Howard noticed immediately that when Kraus looked at Howard, “his head

led the direction of his eyes.” Howard explained that a sober person’s eyes will lead the

person’s head in directing a gaze, but that with a person “who has been consuming,” the

opposite is the case.

       {¶ 7}    “Immediately” upon speaking to Kraus, Howard “smelled the very strong odor

of alcoholic beverage coming off his breath.” Howard also noticed slurred speech, and “very

glassy, blood-shot eyes.” When Howard asked Kraus for documentation, Kraus “fumbled

around in his wallet” locating the requested information.

       {¶ 8}    Howard also noticed four unopened 16-ounce beer containers in a six-pack,

with two places in the six-pack missing. Howard asked Kraus if he had been consuming any
                                                                                           4


alcohol, and Kraus said that he did have “a couple beers.”



       {¶ 9}    Howard asked Kraus to perform the horizontal gaze nystagmus test, the

walk-and-turn test, and the one-leg stand test. Kraus failed the horizontal gaze nystagmus test

and the one-leg stand test. He declined to complete the walk-and-turn test, saying that his

knee was bothering him due to a football injury he had sustained in high school. (Kraus was

26 at the time of the stop.) During the testing, while Kraus was outside his car, Howard

continued to smell the strong odor of an alcoholic beverage on his breath.

       {¶ 10} Howard arrested Kraus for OVI, and took him to the Fairborn police station

after arranging to have Kraus’s car towed. Kraus refused a breath test, explaining that after a

previous OVI arrest, his counsel had suggested that he not take the test.         Howard had

explained the test, and the consequences of refusing the test, to Kraus.

       {¶ 11} Kraus was charged with three offenses: Operating a Motor Vehicle While

Under the Influence of Alcohol, in violation of R.C. 4511.19(A)(1)(a); Operating a Motor

Vehicle While Under the Influence of Alcohol, Refusing to Take a Chemical Test, and Having

Been Convicted of OVI Within the Previous Twenty Years, in violation of R.C.

4511.19(A)(2); and a Marked Lanes violation.



                               II. The Course of Proceedings

       {¶ 12} Kraus was tried to a jury on all three charges on November 10, 2010. The

jury found Kraus guilty of the Marked Lanes violation, but was unable to reach a verdict on

the two OVI charges, and a mistrial was declared as to those charges. In early May, 2011,
                                                                                             5


Kraus moved to dismiss the charges, on speedy-trial grounds. The trial court took the motion

under advisement, indicating that it would rule on the motion on the morning of the trial

scheduled for May 11, 2011. No ruling on the motion is reflected in the record on appeal, but

the trial proceeded on May 11, 2011, so we presume that the motion to dismiss was overruled.

        {¶ 13} Trooper Howard testified for the State. Evan Moody, a friend of Kraus who

had followed him after they both left Shenanigan’s, testified for the defense. Kraus also

testified in his own defense. Howard then testified for the State in rebuttal. Gary R. Mader,

a Fairborn police sergeant who was in charge of the records of the department, and who was

also a senior operator of the breath test machine at the department, also testified for the State

in rebuttal.

        {¶ 14} There is no transcript of the closing arguments or the jury instructions in the

record on appeal, but written jury instructions are in the record, and two verdict forms, signed

by all eight jurors, finding Kraus guilty of each OVI charge, are also in the record. There is

an anomaly concerning the second verdict form, finding Kraus guilty of the violation of R.C.

4511.19(A)(2), which will be discussed in Part IV of this opinion, dealing with Kraus’s

Second Assignment of Error.

        {¶ 15} Kraus appeals from his conviction and sentence for the two OVI offenses.



                     III. The Record Does Not Demonstrate that Kraus

               Was Sufficiently Prejudiced by the Six-Month Interval Between

               the Mistrial and the Retrial to Merit the Dismissal of the Charges

        {¶ 16} Kraus’s First Assignment of Error is as follows:
       [Cite as State v. Kraus, 2013-Ohio-393.]
               THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

       MOTION TO DISMISS FOR VIOLATION OF HIS SPEEDY TRIAL RIGHTS

       UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

       AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.



               A. We Find It Unnecessary to Rely Upon State v. Polhamus,

                              infra, Which May Be Distinguishable

       {¶ 17} As a threshold matter, we address the State’s argument that, under State v.

Polhamus, 2d Dist. Montgomery No. 17283, 1999 WL 1124605 (June 18, 1999), Kraus has

failed to satisfy his initial burden of demonstrating that there has been a delay that is

presumptively prejudicial.

       {¶ 18} Both parties agree that R.C. 2945.71(C)(2), which sets forth statutory time

limits within which to bring an accused to trial, does not apply to a delay between a mistrial

and a retrial. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The statutory time

limits may, nevertheless, serve as useful guidelines in determining what is a reasonable time

for constitutional speedy trial purposes. Id.

       {¶ 19} In State v. Polhamus, at *2, we cited Barker v. Wingo, 407 U.S. 514, 92 S.Ct.

2182, 33 L.Ed.2d 101 (1972), for the proposition that the record must demonstrate “some

delay which is presumptively prejudicial” before there is any necessity to inquire into the

Barker v. Wingo factors for determining whether a particular delay is reasonable.          In

Polhamus, we found that a delay of 139 days between a mistrial and the commencement of a

retrial was not sufficient to establish presumptive prejudice, thereby triggering a Barker v.

Wingo analysis.
[Cite as State v. Kraus, 2013-Ohio-393.]
        {¶ 20} The State contends that the delay in this case, approximately 180 days, is

indistinguishable from the 139-day delay that we found insufficient in Polhamus. In reaching

the conclusion in Polhamus that the 139-day delay in that case was insufficient to trigger a

Barker v. Wingo analysis, we noted that the 139-day delay was less than half of the time – in

excess of one year – that we had previously found presumptively prejudicial in State v. Kelly,

101 Ohio App.3d 700, 656 N.E.2d 419 (2d Dist. 1995). We also noted that the 139-day delay

in that case was only barely in excess of one-half of the statutory time allowed for trial in that

case, which was 270 days.

        {¶ 21} In the case before us, the delay between the mistrial and the retrial was

approximately 180 days. As in Polhamus, this 180-day interval was no more than half of the

one-year interval we had found presumptively prejudicial (triggering a Barker v. Wingo

analysis) in State v. Kelly. Unlike in Polhamus, however, the 180-day interval in this case is

not less than half, but double, the statutory time allowed for trial in this case, which is 90 days.

        {¶ 22} Thus, State v. Polhamus, upon which the State relies for the proposition that

the delay in this case is not sufficient to trigger a Barker v. Wingo analysis, may well be

distinguishable. We conclude in Part III-B of this opinion, below, that the application of the

Barker v. Wingo analysis leads to the conclusion that the delay in this case was not sufficiently

prejudicial to Kraus to merit the dismissal of the charges against him. Therefore, we find it

unnecessary to determine whether Kraus has met his initial burden of demonstrating a

presumptively prejudicial delay; we will assume, for purposes of analysis, that he has so

demonstrated.



 B. The Record Does Not Demonstrate that the 180-Day Interval in this Case Between
                                                                                             8


              the Initial Mistrial and the Retrial Was Sufficiently Prejudicial

                to Kraus to Merit the Dismissal of the Charges Against Him

       {¶ 23} In Barker v. Wingo, supra, the United States Supreme Court laid down a

framework for analyzing speedy-trial claims. Four broad factors are: the length of delay, the

reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

407 U.S. 514, 530.      The court identified the length of delay as essentially a triggering

mechanism.     “Until there is some delay which is presumptively prejudicial, there is no

necessity for inquiry into the other factors that go into the balance.” Id. As noted in Part

III-A, above, we will assume, for purposes of analysis, that the delay in this case of

approximately 180 days, is sufficient to trigger analysis of the other factors.

       {¶ 24} The reason for the delay was illuminated to some extent in an affidavit of a

legal assistant to defense counsel, submitted in support of Kraus’s motion to dismiss the

charges on speedy-trial grounds. In that affidavit, the following averments were made:

               2. On or about March 9, 2011 I received a call from personnel at the Fairborn

       Municipal Court who desired to schedule a trial date in the above captioned matter.

               3. During that same telephone call I made a comment about not hearing about

       this case in quite some time and that I believed that the case was over. The employee

       of the Fairborn Municipal Court stated that the file had been accidentally filed away

       and was just now located.

       {¶ 25} Since no other explanation for the delay appears in the record, we will assume

that a negligent misfiling of the case file in the Fairborn Municipal Court was the cause for the

delay. This was obviously not the fault of Kraus. But the fault attributable to the State
                                                                                             9


(through the agency of its judicial branch) is slight. Negligent misfilings are an unfortunate,

but inevitable, occasional occurrence in any system of record-keeping. The reason for the

delay in this case is therefore not “[a] deliberate attempt to delay the trial in order to hamper

the defense,” which “should be weighted heavily against the government,” but “a more neutral

reason such as negligence or overcrowded courts,” which “should be weighted less heavily but

nevertheless should be considered since the ultimate responsibility for such circumstance must

rest with the government rather than with the defendant.” Id., at 531.

       {¶ 26} The next factor – the defendant’s assertion of his right – weighs in Kraus’s

favor, since he did move to dismiss the charges on speedy-trial grounds before his retrial

commenced.

       {¶ 27} The final factor is prejudice to the defendant. The United States Supreme

Court identified three interests of the defendant that are subject to being prejudiced by delay:

to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused,

and to limit the possibility that the defense will be impaired. Id., at 532. The first interest –

prevention of oppressive pretrial incarceration – is not at play in the case before us. Kraus

was not incarcerated during the interval between the mistrial and the retrial.

       {¶ 28} In Barker, the interval between the accused’s arrest and trial was more than

five years. Id., at 516- 518. During the first ten months of that time, the accused was

incarcerated, but then he made bond and was not incarcerated during the remainder of that

time. Id. The accused was charged with two counts of murder. The opinion does not

indicate whether the accused was subject to the possibility of the death penalty. Upon

conviction, he was sentenced to life imprisonment. Id., at 518. After conducting its analysis,
                                                                                                 10


the United States Supreme Court affirmed a decision that the accused was not entitled to the

dismissal of the charges on speedy-trial grounds.            Id., at 536.     The Supreme Court

characterized the prejudice to the accused in Barker as “minimal,” while noting immediately

thereafter that: “Of course, Barker was prejudiced to some extent by living for over four years

under a cloud of suspicion and anxiety.” Id., at 534.

        {¶ 29} In the case before us, Kraus was only subject to anxiety and concern for about

180 days. And unlike the defendant in Barker, he was not accused of murder, with the

prospect of at least a life sentence hanging over him. Thus, while the anxiety and concern to

which Kraus was subject during the 180 days between the mistrial and the retrial is a factor, it

is entitled to little weight, like the fact that the delay appears to have been attributable, at least

in part, to the negligent misfiling of his case file.

        {¶ 30} The remaining factor – the impairment of the defendant’s ability to prepare his

case – is “the most serious * * * because the inability of a defendant adequately to prepare his

case skews the fairness of the entire system.” Id., at 532.

        {¶ 31} One of the ways in which Kraus claims that the delay in his case impaired his

defense is that a friend who was going to testify in his defense was unavailable to testify.

When Kraus renewed his motion to dismiss during the trial, he raised this issue in the

following colloquy:

                [Defense counsel]: I spoke with Mr. (INDECIPHERABLE) yesterday,

        indicated I was going to deliver a subpoena to him. He was aware that I was going to

        be doing that yesterday. He indicated he would be here, don’t waste my time, I didn’t

        need it, so I did not serve a subpoena on him, plus he’s a friend of Mr. Kraus’, he isn’t
                                                                                           11


employed at the present, so we didn’t need a subpoena or anything or any type of

excuse from work.

       As I left here during the lunch break, I received a call from Mr.

(INDECIPHERABLE) to call Mr. (INDECIPHERABLE) to let him know to be here

shortly after 1 o’clock. We will start at 1:20, which was what my arrangement was

[sic] Mr. (INDECIPHERABLE) yesterday.

       He indicated to Mr. Kraus that his infant son his [sic] sick; that he didn’t have

gasoline to get here. I indicated call him back, tell him that, you know, to bring his

son and, you know, one of the other witnesses could watch his son while he was in

here testifying; that Dave could give him gas money to get home if he could get here.

       Anyway, he’s indicated that he is not coming, so I do think there some [sic]

prejudice in the last hour with Mr. (INDECIPHERABLE) absence.              So I’m just

renewing my motion to dismiss.

       ***

       MR. SULLIVAN [representing Kraus]: Obviously, we can’t pick and choose

when our children get sick and (INDECIPHERABLE) they get sick, so I don’t think it

was anything planned on Mr. (INDECIPHERABLE) part.

       THE COURT: Okay. Well, that doesn’t sound like you necessarily lost the

witness because of the delay. You lost him – actually you knew here he was, you

contacted him, you spoke to him, he said he was going to be here, so I’m going to

overrule the motion to dismiss.

{¶ 32} We agree with the trial court. The 180-day delay between the mistrial and the
                                                                                              12


retrial was not the proximate cause of Kraus’s inability to obtain the testimony of the witness.

The events that transpired – the sudden illness of the witness’s son – could just as easily have

occurred if the re-trial had been scheduled just one week after the mistrial. The particular

date of the sudden illness was fortuitous, and just happened to coincide with the day set for

Kraus to present his witnesses.

       {¶ 33} Next, Kraus argues that the 180-day delay between the mistrial and the trial

resulted in a “lack of recollection by the witnesses.” As one example, he refers to the fact

that his friend, Evan Moody, could not recall whether he had a cell phone conversation with

Kraus while they were driving, in separate cars, from Shenanigan’s, before Kraus was stopped.

 Kraus recalled the conversation, and testified that Moody had told him that a state trooper

was following Moody, who was following Kraus.               Kraus could not remember if they

discussed anything else.

       {¶ 34} We do not have a transcript of the original trial, so we do not know what

either Moody or Kraus was able to recall of this conversation in their testimony at the first trial

that they could not recall at the second trial.       There would not appear to be anything

concerning this conversation of material consequence to the trial, and Kraus does not identify

any aspect of the forgotten conversation that could have assisted his defense at the retrial. We

doubt that the jury would have found Moody, or Kraus, to have been any less credible as a

witness because of an inability to remember a cell phone conversation, or, in Kraus’s case,

details of that conversation, that seems to have had no material relationship to the charged

offenses. Kraus and Moody did remember many facts that occurred in the hours preceding

Kraus’s arrest that were material to the charged offense.
                                                                                           13


       {¶ 35} We have not been provided with a transcript of the closing arguments to the

jury, so we do not know whether the State argued to the jury that either witness was less

credible because of an inability to remember seemingly trivial details of the events thirteen

months earlier.      Perhaps an argument by the State along those lines could be used to

demonstrate impairment of Kraus’s ability to defend himself, but it is Kraus’s burden to

demonstrate error in the record, and he has not provided us with a transcript of the closing

arguments.

       {¶ 36} Finally, Kraus argues that the 180-delay between the mistrial and the retrial

impaired his defense because his “testimony was repeatedly the subject of impeachment by a

prior inconsistent statement, namely his testimony from the prior trial.” The first colloquy

Kraus cites to support this argument is worth quoting in full:

               Q. Mr. Kraus, I want to get a little bit more into the timing of that day, if you

       don’t mind.

               A. Okay.

               Q. You testified that you went over to your friend’s [sic] Rick’s at what time?

               A. It has been 13 months ago, ma’am.

               Q. Okay. But you were here and testified about this in November, correct?

               A. I can remember 7 months ago better than I can 13 months.

               Q. Okay. Do you want to go back and look at what you said then?

               A. If you need to, yes.

               Q. Sure. You have no idea when you first got there today; is that what you’re

       telling us?
                                                                                        14


       A. When I got here today?

       Q. No, when you got to Rick Cassetta’s house.

       A. I can tell you it was around noon sometime, around.

       Q. Okay.

       A. Around that timeframe, early afternoon.

       Q. Okay. And when did you leave?

       A. Later that evening, early evening, maybe.

       Q. Earlier you testified you were there three or four hours. That would put

you there until about 3 or 4?

       A. I said or more as well.

       Q. I’m sorry?

       A. I also said or more.

       Q. So if the last time you were here you said you left between 6 and 7, that’s

probably about accurate?

       A. If I testified to that, that’s about right.

       Q. Okay. So you were there from noon or one to 6 or 7?

       A. Yes.

       Q. Okay. And you arrived at Shenanigan’s at what time?

       A. It’s between 8 and 9, I guess, if that’s what I testified before.

       Q. Okay. So the time that you left Rick’s house, which is in Midway?

       A. Right.

       Q. Correct, which is about 10 miles way [sic] from Fairborn. Would you
                                                                                               15


       say?

              A. Yeah, give or take.

              Q. So you left there at the latest 7?

              A. Yes.

              Q. Earliest you got to Shenanigan’s, 8, 8:30?

              A. Right.

              Q. So it took you an hour and a half to get from Midway to Shenanigan’s?

              A. I wasn’t going directly there to start with, ma’am.

              Q. Okay, what did you do for an hour and a half?

              A. I was driving around, test driving the car that I just built.

              Q. Where?

              A. All over.

              Q. Did you drive to Dayton, did you drive to –

              A. No –

              Q. – Springfield –

              A. – Springfield area.

              Q. Did you make any stops? You didn’t stop and have a couple drinks at a

       different bar?

              A. No.

       {¶ 37} The State’s purpose with this line of questioning is evident. The State was

attempting to establish that the time between Kraus’s leaving his friend Casseta’s house and

Kraus’s arrival at Shenanigan’s was substantially in excess of the time required to drive
                                                                                             16


straight there, in support of an inference that Kraus stopped in the meantime and drank

alcoholic beverages.

       {¶ 38} Although Kraus indicated that he could not presently remember the precise

time he left Casseta’s house, he vouched for his prior testimony in that regard by stating that if

he previously testified that he left Casseta’s between 6:00 and 7:00, than “that’s about right.”

Satisfied with that response, the State made no further effort to impeach Kraus’s testimony in

that regard. Again, we do not have a transcript of the State’s closing argument, but we see no

indication from the above-quoted exchange that Kraus was hampered in his ability to defend

himself based upon the extent of the delay between the two trials. If Kraus had claimed, at

his second trial, that he had left Casseta’s house later than 7:00, then the State could have

impeached Kraus by pointing out the contradiction between that claim and his earlier

testimony, but that did not happen.

       {¶ 39} Kraus next points to the following exchange on cross-examination:

                Q. Okay. Now you testified to, who was present at Rick’s?

                A. Emme, his – now his wife, and his son. His Mom lives there, but she was

       upstairs the whole time. She came down once to eat with us.

                Q. Okay. Do you recall at the last trial when I asked you that same question

       you indicated just Emme was there; you didn’t mention these other people?

                A. I must not have thought of his Mom seeing me drink or Levi seeing me

       drink.

                Q. But that wasn’t – you acknowledge that was not the question; the question

       was who was there?
                                                                                                       17


                 A. Yes.

                 Q. And how old is Levi. Levi is the baby?

                 A. Just an infant.

        {¶ 40} The State did not continue this line of questioning.

        {¶ 41} To begin with, this is a trivial point, with little or no materiality to the charges.

 And in terms of the possible impact of this line of questioning on Kraus’s credibility, it

should be noted that at the retrial Kraus is, if anything, remembering more detail – the

presence of Casseta’s mother and infant son – than he remembered at his first trial, so it is

difficult to blame Kraus’s recollection of additional details upon the lapse of time between the

first trial and the retrial.

        {¶ 42} Again, we have neither a transcript of the first trial, nor a transcript of the

State’s closing argument. In the absence of either, we cannot see how the above-quoted

colloquy establishes that Kraus was significantly impaired in his ability to defend himself

because of the 180-day delay between his first trial and his retrial.

        {¶ 43} Finally, Kraus points to the following exchange during his cross-examination:

                 Q. Okay. Either of you [Kraus or Moody] offer to buy each other a drink

        [while they were at Shenanigan’s]?

                 A. No.

                 Q. No?

                 A. No.

                 Q. Evan [Moody] didn’t offer to buy you a drink?

                 A. No.
                                                                                     18


       Q. Okay. Now, let’s go back over this, you testified – excuse me – you

testified about the same incident here in November, correct?

       A. Right.

       Q. And at that time you were under oath, correct –

       A. Yes.

       Q. – just like you are now?

       A. Yes.

       Q. Okay. And it was important at that time to tell the truth, correct?

       A. Yes.

       Q. Okay.

       MS. DEEDS [representing the State]: May I approach.

       THE COURT: Yes.

BY MS. DEEDS:

       Q. I’m going to show you your testimony from the last proceedings, I wanted

[sic] you to follow along with me.

       MR. SULLIVAN: What page are you on?

       MS. DEEDS: 116 to 117.

BY MS. DEEDS:

       Q. Okay. Question. So when you arrived at Shenanigan’s, what does Evan

do? Answer, just sitting there watching a pool tournament. Question. And then the

pool tournament at some point in time ends. Yeah. Question. Okay. What do you

and Evan do then. Answer, well, I went to play some pool and he offered to get
                                                                                                       19


       drinks, but I said I wasn’t going to drink anymore because I was getting tired.

               A. Yes, that was at the beginning of the thing. That is, if that’s – if that’s

       what I testified –

               THE COURT: Mr. Kraus, you need to wait a minute because there’s not a

       question.

       BY MS. DEEDS:

               Q. Did I read that correctly?

               A. Yes.

               Q. Okay.

       {¶ 44} The State did not continue this line of questioning.

       {¶ 45} From Kraus’s response to the prosecutor’s recitation of his testimony at the

prior trial, it appears that he was not suffering from a lapse of memory, but simply understood

the State’s present question as asking whether, as the evening wore on, either Kraus or Moody

had offered to buy the other drinks, not whether Moody had initially offered to buy Kraus

drinks. In any event, the point is trivial. Kraus’s testimony at the retrial was that he did not

have anything alcoholic to drink after having had two beers hours earlier at Casseta’s house,

and nothing in either his testimony at the retrial, or in his testimony quoted by the State above,

indicated otherwise.

       {¶ 46} We have reviewed the entire transcript of the testimony of all the witnesses at

Kraus’s second trial, which resulted in the judgment from which this appeal is taken. As we

have previously noted, we have not reviewed the transcript of his previous trial, which ended

in a mistrial, or the transcript of closing arguments at the retrial, because neither transcript has
                                                                                              20


been made part of the record of this appeal. From the record we have reviewed, we have

found nothing to suggest that Kraus’s ability to defend himself was significantly impaired by

the 180 days that elapsed between his original trial and his retrial. Kraus and Moody, the

only witnesses testifying for the defense, gave detailed accounts of their activities in the hours

preceding Kraus’s arrest. In Moody’s case, this included the time from when Kraus joined

Moody at Shenanigan’s between 6:00 and 7:00 p.m., until Kraus’s arrest. In Kraus’s case,

this included his activities from the preceding day, through a sleepless night, when he was

putting the finishing touches on his car into which he had installed a new engine, continuing

through his time at his friend Casseta’s house, his driving around after leaving there and

arriving at Shenanigan’s, his leaving there, all the way through his encounter with Trooper

Howard, culminating in his arrest.

       {¶ 47} There were only minor inconsistencies between Moody’s testimony and

Kraus’s testimony. (The only one that comes to mind is that Moody did not remember Kraus

having had anything to drink at Shenanigan’s, while Kraus testified that he ordered, and drank,

a bottle of water.) The only inconsistencies between the testimony of either Moody or Kraus

at the retrial and their testimony at the original trial, that were brought out during the retrial,

have been noted above. They are of little to no significance, and, in the one case – Kraus’s

testimony concerning who was present when he was at Casseta’s house – at most show that he

remembered more detail at the retrial, not less.

       {¶ 48} The Barker v. Wingo factors “have no talismanic qualities; courts must still

engage in a difficult and sensitive balancing process.” Barker v. Wingo, 407 U.S. 514, 533.

We conclude that when the Barker v. Wingo factors are balanced in this case, they weigh
                                                                                                                                      21


against the extreme remedy of the dismissal of otherwise meritorious criminal charges.

         {¶ 49} Kraus’s First Assignment of Error is overruled.



                         IV. The Anomaly in the Verdict Form Concerning the

                     R.C. 4511.19(A)(2) Charge Does Not Constitute Plain Error,

                   Because No Manifest Injustice Is Demonstrated on this Record

         {¶ 50} Kraus’s Second Assignment of Error is as follows:

                     AMBIGUITY IN THE VERDICT FORMS AND THE FAILURE OF THE

         JURY TO MAKE A FACTUAL FINDING RENDER THE JURY VERDICT

         INSUFFICIENT AS A MATTER OF LAW THEREBY DENYING MR.

         THOMPSON [SIC] HIS RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR

         TRIAL           AS        GUARANTEED                    BY        THE         SIXTH           AND          FOURTEENTH

         AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO

         CONSTITUTIONS.

         {¶ 51} The elements of a violation of R.C. 4511.19(A)(2) include the following:

operation of a motor vehicle while under the influence of alcohol, refusal to take a chemical

test upon request of the arresting officer, and a conviction for OVI within the preceding 20

years. The jury was properly instructed that the State had the burden to prove each of these

elements beyond reasonable doubt.1

         {¶ 52} The written verdict forms pertaining to each of the two charged offenses,


            1
             Although we do not have a transcript of the oral jury instructions in the record, the written jury instructions are in the record.
 In the absence of anything in the record to suggest the contrary, we presume that the trial court gave the instructions as written.
                                                                                             22


bearing the original signatures of all eight jurors, are in our record. The text of the verdict

pertaining to the R.C. 4511.19(A)(2) offense is as follows:

               We, the Jury, find the Defendant Guilty of Operating Vehicle under the

        Influence of Alcohol or Drugs – OVI ORC 4511.19(A)(2)M1

        The Defendant was/was not (circle one) previously convicted of OVI within 20 years

        of the offense.

        {¶ 53} Neither the word “was” nor the words “was not” are circled on the verdict

form.

        {¶ 54} Kraus acknowledges that the record does not reflect that any objection was

interposed to either verdict form. He concedes that this assignment of error is therefore

governed by the plain-error standard of appellate review.

        {¶ 55} Kraus first argues that the two verdict forms do not sufficiently distinguish

between the two OVI charges. The jury was properly instructed as to each charge, even to the

extent that it was instructed that it could not find Kraus guilty of the R.C. 4511.19(A)(2)

charge if it did not also find him guilty of the R.C. 4511.19(A)(1)(a) charge (since the two

verdicts would be inconsistent, otherwise). And each verdict form specifies the section of

the Ohio Revised Code establishing the offense of which Kraus was convicted under that

charge. We conclude that each verdict form reflects that Kraus was found guilty of the

particular charge to which that verdict form pertains.

        {¶ 56} Kraus then argues that the verdict form pertaining to the R.C. 4511.19(A)(2)

charge is not sufficient to establish that the jury convicted him of that offense because it lists

one (but only one) of the elements – that the defendant was convicted of OVI within the 20
                                                                                          23


years preceding the offense, with the words “was/was not” preceding that element, and neither

option was circled.

       {¶ 57} This assignment of error is governed by the plain error standard. A reversal

of a judgment based upon a plain error “is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.

Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990) (emphasis added).

       {¶ 58} Again, the jury was correctly instructed that Kraus’s having been convicted of

OVI within 20 years preceding this offense was an element of the offense that the State had to

prove beyond reasonable doubt, before the jury could find Kraus guilty. A certified copy of

Kraus’s 2007 conviction for OVI was stipulated into evidence. Early in Kraus’s direct

testimony, he acknowledged that he had been convicted of OVI in 2007.             Under these

circumstances, we cannot find a manifest miscarriage of justice in this case.

       {¶ 59} As the State notes, there was no necessity that the verdict form list any of the

elements comprising the offense, in contradistinction to a specification enhancing the degree

of an offense, or enhancing the penalty that can be imposed for an offense. Nevertheless,

even a gratuitous listing of an element on a verdict form might impeach the reliability of the

verdict under other circumstances, since it might cast doubt as to whether the jury in fact

found the defendant guilty of the offense. If the gratuitously listed element were seriously in

contention, as opposed to having been conceded by the defendant, there were a failure to circle

the appropriate verbiage in a “was/was not” formulation, and the issue were raised in the trial

court, for example, we would have no hesitancy in reversing a conviction under those

circumstances.
[Cite as State v. Kraus, 2013-Ohio-393.]
        {¶ 60} This case exemplifies the reason for requiring a heightened standard of

prejudice for plain error – in this case, a manifest miscarriage of justice. If the anomaly of the

jury verdict form had been brought to the attention of the trial court before the jury returned

the form, the anomaly could easily have been corrected. Even if the anomaly had been

brought to the attention of the trial court after the jury returned the form, but before the jury’s

verdict was entered and the jury was discharged, the trial court could have returned the R.C.

4511.19(A)(2) charge to the jury for further deliberations, with a corrected verdict form, and

appropriate instructions, avoiding the necessity of another trial in this case.

        {¶ 61} Kraus’s Second Assignment of Error is overruled.



                                           V. Conclusion

        {¶ 62} Both of Kraus’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                                     .............

DONOVAN and FROELICH, JJ., concur.


Copies mailed to:

Betsy A. Deeds
Charles M. Blue
Hon. Beth W. Root
