[Cite as State v. Breitenstine, 2013-Ohio-790.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                        JUDGES:
                                                     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                           Hon. William B. Hoffman, J.
                                                     Hon. John W. Wise, J.
-vs-

JERALD R. BREITENSTINE                               Case No. 2012 AP 05 0033

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Appeal from the New Philadelphia
                                                  Municipal Court, Case Nos. CRB 1100130,
                                                  TRC 1100281 A-D



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           March 1, 2013




APPEARANCES:


For Plaintiff-Appellee                            For Defendant-Appellant


DOUGLAS V. JACKSON                                CARMEN V. ROBERTO
New Philadelphia Prosecutor                       The Nantucket Building, Third Floor
150 East High Avenue                              23 S. Main Street
New Philadelphia, Ohio 44663                      Akron, Ohio 44308
Tuscarawas County, Case No. 2012 AP 05 0033                                                 2

Hoffman, J.


          {¶1}    Defendant-appellant Jerald R. Breitenstine appeals the April 12, 2012

    judgment entered by the New Philadelphia Municipal Court denying his motion for new

    trial. Plaintiff-appellee is the state of Ohio.

                                      STATEMENT OF THE CASE1

          {¶2}    Appellant was charged with operating a motor vehicle while intoxicated in

    violation of R.C. 4511.19(A)(1), a misdemeanor of the first degree, and resisting arrest

    in violation of R.C. 2921.33(A), a misdemeanor of the second degree. Following a jury

    trial, Appellant was found guilty of both charges. The trial court then found Appellant

    not guilty of various minor misdemeanor traffic charges.

          {¶3}    On February 13, 2012, Appellant moved the trial court for a new trial

    pursuant to Rule 33 of the Ohio Rules of Criminal Procedure. The trial court conducted

    a hearing on the motion on March 8, 2012. Via Judgment Entry filed April 12, 2012,

    the trial court denied the motion.

          {¶4}    Appellant now appeals, assigning as error:

          {¶5}    "I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

    FOR NEW TRIAL."

          {¶6}    R.C. 2945.79 reads,

          {¶7}    "A new trial, after a verdict of conviction, may be granted on the

    application of the defendant for any of the following causes affecting materially his

    substantial rights:




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Tuscarawas County, Case No. 2012 AP 05 0033                                               3


      {¶8}    "(A) Irregularity in the proceedings of the court, jury, prosecuting attorney,

or the witnesses for the state, or for any order of the court, or abuse of discretion by

which the defendant was prevented from having a fair trial;

      {¶9}    "(B) Misconduct of the jury, prosecuting attorney, or the witnesses for the

state;***"

      {¶10} Ohio Criminal Rule 33 provides,

      {¶11} "A new trial may be granted on motion of the defendant for any of the

following causes affecting materially his substantial rights:

      {¶12} "(1) Irregularity in the proceedings, or in any order or ruling of the court, or

abuse of discretion by the court, because of which the defendant was prevented from

having a fair trial;

      {¶13} "(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the

state;***"

      {¶14} Accordingly, a new trial is warranted where misconduct has occurred, and

the defendant's substantial rights have been materially affected by the misconduct.

State v. Taylor (1991), 73 Ohio App.3d 827; State v. Jones (1992), 81 Ohio App.3d

348. The decision to grant a new trial is within the sound discretion of the trial court.

State v. Patel, 2nd Dist. No. 2010-CA-77, 2011 Ohio 6329; State v. Reynolds (1988),

49 Ohio St.3d 27.

      {¶15} In Patel, supra, the Second District held,

      {¶16} "In finding no prejudice to Patel, we reject his argument that prejudice

must be presumed in this case. In support, Patel relies on United States v. Lawhorne

(E.D.Va.1998), 29 F.Supp.2d 292. There a federal district court concluded that when
Tuscarawas County, Case No. 2012 AP 05 0033                                             4


communications between a prosecutor and a juror during trial 'cannot be characterized

as innocuous, there arises a presumption of prejudice.' Id. at 308. In such a case, the

government bears the burden to establish the absence of prejudice. Id. In Patel's case,

however, the record reflects that the two communications at issue were innocuous. The

first involved a brief conversation that had nothing to do with Patel's trial. The second

involved a juror's wink in response to a detective either wishing the juror happy birthday

or telling another juror to have a nice day after the jury had been released from service.

We are unpersuaded that these communications created a presumption of prejudice. In

the absence of demonstrable prejudice to Patel, which does not exist in light of the trial

court's findings, we cannot say the trial court abused its discretion in denying the

motion for a mistrial and refusing to grant Patel a new trial. Accordingly, the first

assignment of error is overruled."

      {¶17} In the case sub judice, Prosecutor Fete testified at the March 8, 2012

hearing on Appellant's motion for new trial,

      {¶18} “Mr. Fete: Right after the jury was seated we took a brief break. She had

come -- - the jurors were returning from their break, she came over to me and asked

me if there was a Marvin Fete that was a teacher. She said, ‘Is there another Marvin

Fete that was a teacher?’ I said, ‘Yes, that’s my father.’ I said, ‘Did you have him in

school?’ And she said, ‘No.’ And that was it. That was the extent of the conversation.

I was seated here with the officer waiting for the jury to come back and - -

      {¶19} “The Court: Where did the conversation take place?          Like right where

you’re standing?

      {¶20} “Mr. Fete: Yeah. I wasn’t even standing. I was sitting down.
Tuscarawas County, Case No. 2012 AP 05 0033                                               5


      {¶21} “The Court: Where was Mr. Gartrell and Mr. Breitenstine?

      {¶22} “Mr. Fete: Right where they are now.

      {¶23} “The Court: All right. Go ahead.

      {¶24} “Mr. Fete: She asked me that casually and I said ‘Did you have him in

school,’ and she said ‘No,’ and walked away.

      {¶25} “The Court: Okay.

      {¶26} “Mr. Fete: So could’ve been a negative - - she had a negative thought of

my father but I didn’t think anything of it. It hadn’t started, the trial hadn’t even begun.

And if I remember the admonishment it was not that you couldn’t converse with

anyone, but you were not allowed to discuss the case with anyone. And that’s what I

recall the admonishment being told to the jurors.

      {¶27} “The Court: Well, I think there is something in there, not so much directed

at anyone but it does say to the jurors don’t think that people here are being rude to

you, that we’re deliberately ignoring you, but it is not appropriate, that type of thing.

The jurors are told not to discuss the case. I mean obviously these instructions that

are given are fairly standardized and would be in the record. Okay. So basically - - so

I asked you the facts so I redirected you to that issue. But is there any additional

argument that you want to make, Mr. Fete, over and above what you filed with the

Court?

      {¶28} “Mr. Fete: No, Your Honor. We believe the issue, if you don’t raise it at - -

I mean the whole purpose we have an alternate juror for that purpose in case

somebody does something inappropriate or wrong. This was before the trial started. It

was witnessed by both the Defendant and his attorney. It did not raise an objection,
Tuscarawas County, Case No. 2012 AP 05 0033                                                   6


therefore, believe they waived their right to object. And that this is merely an attempt to

get a second bite of the apple and we outline that in our Reply.”

      {¶29} Tr. at 5-7.

      {¶30} Upon review of the record, we find the brief conversation between the

juror and the prosecutor took place prior to the start of the trial, did not pertain to the

case and was innocuous. The conversation did not create a presumption of prejudice,

and did not materially affect the substantial rights of Appellant. Accordingly, we find

the trial court did not abuse its discretion in denying Appellant's motion for a new trial.

      {¶31} The April 12, 2012 judgment entered by the New Philadelphia Municipal

Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ W. Scott Gwin _____________________
                                              HON. W. SCOTT GWIN


                                              s/ John W. Wise _____________________
                                              HON. JOHN W. WISE
Tuscarawas County, Case No. 2012 AP 05 0033                                        7


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JERALD R. BREITENSTINE                     :
                                           :
       Defendant-Appellant                 :         Case No. 2012 AP 05 0033


       For the reason stated in our accompanying Opinion, the April 12, 2012 judgment

entered by the New Philadelphia Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE
