[Cite as State v. Bell, 2018-Ohio-3486.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                            RASHAN T. BELL,

                                           Defendant-Appellant.


                         OPINION AND JUDGMENT ENTRY
                                           Case No. 16 MA 0119


                                    Criminal Appeal from the
                        Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 2015 CR 337

                                           BEFORE:
                   Kathleen Bartlett, Gene Donofrio, Cheryl L. Waite, Judges.


                                               JUDGMENT:
                                                AFFIRMED


Atty. Ralph Rivera, 21 West Boardman Street, 6th Floor, Youngstown, Ohio, 44503, for
Appellee and

Atty. Desirea DePiero, 8256 East Market Street, Suite 111, Warren, Ohio 44484, for
Appellant.

                                              August 29, 2018
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BARTLETT, J.

       {¶1}   Appellant, Rashan T. Bell, appeals the July 18, 2016 decision of the
Mahoning County Court of Common Pleas. Appellant argues the trial court erred in
denying his motions for mistrial and for new trial. For the following reasons, his sole
assignment of error is without merit and this matter is affirmed.
                             Facts and Procedural History
       {¶2}   On April 30, 2015, Appellant was indicted on one count of aggravated
robbery, R.C. 2911.01(A)(3)(C), felony of the first degree, and one count of robbery,
R.C. 2911.02(A)(2)(B), felony of the second degree. Both counts contained firearm
specifications. Appellant entered not guilty pleas to both counts.
       {¶3}   Jury trial commenced on May 9, 2016. The jury began deliberations at
10:20 a.m. on May 12, 2016. (Tr. 480). At 11:05 a.m. the trial court responded to a jury
question regarding the ability to view witness testimony. (Tr. 482). At 11:53 a.m. the
jury requested a break for lunch which was provided. (Tr. 483). Subsequently at 2:25
p.m. the trial court responded to a jury note in the following manner:

       The Court: Ladies and gentlemen, I have a question that says, ‘Does the
       fact that I believe that the defendant was complicit in the crime but have
       reasonable doubt that there is sufficient evidence that the defendant
       committed aggravated robbery or just robbery mean that I have to vote
       guilty?’ The only thing I can tell you is that you should read the definition
       of complicity, aggravated robbery, and reasonable doubt. (Tr. 484).

       {¶4}   The jury was subsequently recessed for the day at 3:52 p.m. The trial
court advised the jury not to discuss the case or permit anyone to discuss it in their
presence, and not to form any opinions on the matter until they return for deliberations.
(Tr. 485).
       {¶5}   The jury resumed deliberations at 9:00 a.m. the next day. At 10:11 a.m.
the trial court responded to the following jury question:

       It reads, ‘What do we do if we feel a juror won’t follow the jury


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      instructions?' Ladies and gentlemen, you took an oath to follow the law.
      The jury instructions are part of the law. Therefore, you are under oath to
      follow the jury instructions and must. (Tr. 486).

      {¶6}    The next portion of the transcript notes that on May 13, 2016 at 10:00
a.m. (which appears to be an error in the time noted in the transcript: brief of Appellant
states that this communication occurred around 11:30 a.m. when trial counsel for the
Appellant read the jury note into the record), the following proceedings were had outside
the presence of the jury with counsel and the court:

      Mr. Lavelle [trial counsel for Appellant]:       I would start by reciting this
      question if that’s okay with you. For what it’s worth, we’re in the anteroom
      and out of the presence of the jury. Everybody representing the parties is
      here except the defendant himself. The question was given to me by the
      court, purportedly from the jury indicating, ‘We are at a stalemate, as a
      juror refuses to follow the law as set before us. What do we do?’ The word
      stalemate is circled. At this point I – I would move this court to declare this
      jury to be hung and have a mistrial. If the jury indicates they’re at a
      stalemate, then there’s no – there’s no just verdict that’s going to come
      from this. They’ve been deliberating now for better than 24 hours in actual
      time and probably about 7 and a half or 8 hours in juror time.           They
      skipped lunch yesterday, and they went from about 10:30 to 4:00. It’s now
      I think 11:30. They’ve been at it for two and a half hours. We literally can
      hear screaming in the anteroom, which is next to the jury room. The judge
      indicated she is going to make some determination that based on that
      question that maybe one of these jurors cannot follow the law and replace
      that particular juror with the first alternate. We would absolutely object to
      that because you’re essentially letting the jury make a judicial
      determination that he or she, whoever the holdout may be, can’t follow the
      law. All of this is premised on our – I guess our idea that there’s an 11 to
      1 deadlock and it’s for guilty. We have no knowledge of that. We have no
      knowledge of what the holdout may be or what the vote is even at this


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       point in time. But as far as mechanically speaking, I think it’s improper to
       dismiss a juror because the other persons on the jury determine by a note
       that he or she can’t follow the law. So anything but a mistrial at this point
       is objected to by the defense. (Tr. 487-89).

       {¶7}   Trial counsel for the State argued that the jury note was not saying that
they could not agree on a verdict, but rather that one juror refused to follow the law, and
the State argued that the juror should be replaced. The trial court stated that “over
defendant’s objection, [the court] is going to bring the jury into the courtroom, inquire of
the foreman if it is one juror, and if it is just one juror not following the law, the Court is
then going to excuse that juror, replace with the first alternate, and then give the jury the
option, since they have to begin their deliberations anew, either continuing their
deliberations this afternoon or coming back on Monday. (Tr. 489-90).
       {¶8}   The transcript reflects that a short recess was had, and the trial court then
advised the jury: “[W]e received your note, and based on your note, the attorneys have
requested that they have time to research that issue. Therefore, I am going to dismiss
you for the day at this time.” (Tr. 490). The jury was subsequently recessed at 3:17
p.m. on May 13, 2016.
       {¶9}   Following the weekend recess, the jury resumed at 8:59 a.m. on May 16,
2016, and the trial court stated:

       Let the record reflect that based on the question from the jurors Friday
       morning, the Court without objection – any further objection from counsel
       is going to interview the juror in question . . . in chambers without counsel
       present but on the record. (Tr. 492).

       {¶10} The trial judge interviewed the juror in chambers, as follows:

       The Court: Sit down, sir.

       Juror: Right here?

       The Court: Yeah. Let me preface this by saying you’re not in trouble.

       Juror: I’m sorry?


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      The Court: You’re not in trouble. There’s no right or wrong, okay?

      Juror: Oh, okay. Thank you.

      The Court: I received a note from the jury on Friday, as you know, saying
      that one juror could not follow the law or the instructions.

      Juror: That’s not so, Judge.

      The Court: That’s why we’re having this discussion. Can you explain to
      me – without telling me how you’re going to vote, if possible, could you
      explain to me what’s going on?

      Juror: Okay. I just disagree with them on the –

      The Court: The facts, the evidence?

      Juror: Yes. Yes. And they want me to go one way and –

      The Court: But you are following the law?

      Juror: Yes ma’am.

      The Court: And the instructions?

      Juror: Yes. They want agreement on both charges, and I don’t – I don’t
      think that was sufficient evidence on the stronger charge, aggravated
      robbery.

      The Court: Okay.

      Juror: And they want me to –

      The Court: Okay. Well, then I’m going to instruct the jury to go back and
      continue their deliberations.

      Juror: Uh-huh.

      The Court: And I want them – I’m going to tell them to do so with an open
      mind and reconsider all the evidence, okay? And I want you to do the
      same thing, but I’m going to put that on the record with the jury.

      Juror: See, I –

      The Court: As long as you’re following the law.



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        Juror: See, I object to the fact that they had already made up their mind
        like this is what they were going to do before I came in, and they were –
        all of them were there except three of us and –

        The Court: That’s okay. You don’t have to tell me what’s going on in the
        jury room.

        Juror: Okay.

        The Court: Okay? As long as you’re following the law.

        Juror: (Nodding head).

        The Court: Okay.

        Juror: You know, they’re telling me I don’t know the law and –

        The Court: Well, you have the instructions of law in front of you –

        Juror: Sure. Sure.

        The Court: -- and that’s what you are to follow.

        Juror: And I used to cover jury proceedings for – not in this court but in
        Youngstown Municipal Court for a couple years, my first couple years, at
        the Vindicator.

        The Court: Okay.

        Juror: They tell me I don’t know the definition of complicity. Come on,
        you know. They’re saying I’m not intelligent. I think I’m just as intelligent
        as they are.

        The Court: I’m sure you are. Thank you.

        Juror: Thank you.

        (Tr. 492-96).
        {¶11} The trial judge then informed the attorneys that the interview revealed that
the juror was following the law but disagreed as to what the evidence showed. (Tr.
496).
        {¶12} The trial court further stated:




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       Therefore, the Court’s going to instruct the jury to continue with their
       deliberations. If they don’t come to a verdict within an hour, I will then give
       them the Howard charge. (Tr. 496).

       {¶13} Trial counsel for Appellant responded:

        I’m going to move at this point to have this case declared as hung, the
        jury hung, and move the Court for a mistrial. They’ve already deliberated
        for in excess of ten hours. You got a note last week indicating that
        they’re at a stalemate. I think any further deliberation or to force this jury
        to deliberate is now you’re violating my client’s right to have a hung jury,
        which is one of his constitutional rights based on a jury trial. (Tr. 497).

       {¶14} The trial court advised the jury to continue their deliberations over the
objection of trial counsel for Appellant, stating: "Ladies and gentlemen, since all twelve
of you are now present in the jury room, I’m going to instruct you to continue with your
deliberation, consider all the evidence anew, and do it with the goal of reaching a verdict
if you can do so without surrendering your honest convictions." (Tr. 498).
       {¶15} The jury returned to the courtroom at 11:35 a.m. on May 16, 2016 to
render its verdict and found Appellant guilty on both counts as indicted but not guilty on
the firearm specifications. The jurors were polled and all indicated that the verdict was
accurate. (Tr. 499-502).
       {¶16} At the sentencing hearing on July 18, 2016, trial counsel for Appellant
requested an acquittal under Criminal Rule 29, or a new trial based upon the “peculiar
deliberation of this particular jury.” (Tr. 3). The trial court overruled both motions. (Tr.
4). The trial court merged both counts and sentenced Appellant to eight years in prison.
This timely appeal followed.




Case No. 16 MA 0119
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                                          Mistrial/New Trial1
        {¶17}     Appellant's sole assignment of error asserts:

        The trial court abused its discretion when it overruled Appellant's motions
        for a mistrial and for a new trial related to the jury deliberation irregularity.

        {¶18} The decision to grant or deny a motion for a mistrial or new trial is within
the sound discretion of the trial court and will not be reversed absent an abuse of that
discretion. Merlin v. Ankle & Foot Care, 7th Dist. No. 16 MA 0051, 2017-Ohio-4388,
¶7 (mistrial); State v. Ludt, 180 Ohio App.3d 672, 2009-Ohio-416, 906 N.E.2d
1182, ¶15 (7th Dist.) (new trial). An abuse of discretion means the trial court's decision
is unreasonable based upon the record; that the appellate court may have reached a
different result is not enough to warrant reversal. Smith v. Smith, 7th Dist. No. 14 CA
0901, 2016–Ohio–3223, ¶ 13. "The essential inquiry for both motions is whether the
substantial rights of the accused are adversely or materially affected." State v. Casto,
9th Dist. No. 2976-M, 2000 WL 1288178 *9 (Sept. 13, 2000) citing State v. Nichols, 85
Ohio App.3d 65, 69, 619 N.E.2d 80, (4th Dist.1993) (mistrial); Crim.R. 33(A) (new trial).
“Mistrials need be declared only when the ends of justice so require and a fair trial is no
longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1
(1991). However, a defendant may move for a new trial under Crim.R. 33(A) only upon
a showing of one of six grounds. Appellant argues that the motion for new trial should
have been granted due to the “irregularity in the trial court proceedings” and recites the
language from Criminal Rule 33(A)(1). Criminal Rule 33(A) provides, in pertinent part:

        (A) Grounds. A new trial may be granted on motion of the defendant for
            any of the following causes affecting materially his substantial rights:

        (1) Irregularity in the proceedings, or in any order or ruling of the court, or

1 In his brief Appellant seems to focus on the argument related to a motion for a new trial while the State
focuses on a mistrial. Both will be discussed in turn. Also, Appellant’s trial counsel requested an acquittal
or new trial at the sentencing hearing. There is no mention of the acquittal in Appellant’s brief, which
would have also been time-barred in accordance with Criminal Rule 29: [i]f a jury returns a verdict of
guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made
or renewed within fourteen days after the jury is discharged or within such further time as the court may
fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside
the verdict and enter judgment of acquittal.


Case No. 16 MA 0119
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            abuse of discretion by the court, because of which the defendant was
            prevented from having a fair trial * * *. Crim.R. 33(A)(1).

       {¶19} The motion for a new trial must also be timely. Crim.R. 33(B) provides:

       (B) Motion for New Trial; Form, Time. Application for a new trial shall be
       made by motion which, except for the cause of newly discovered
       evidence, shall be filed within fourteen days after the verdict was
       rendered, or the decision of the court where a trial by jury has been
       waived, unless it is made to appear by clear and convincing proof that the
       defendant was unavoidably prevented from filing his motion for a new trial,
       in which case the motion shall be filed within seven days from the order of
       the court finding that the defendant was unavoidably prevented from filing
       such motion within the time provided herein.

       {¶20} In the present matter, Appellant’s verdict was rendered on May 16, 2016.
Appellant made an oral motion for a new trial at his sentencing hearing on July 15,
2016, well outside of the fourteen-day time limit. Further, Appellant did not provide any
evidence or argument that he was unavoidably prevented from filing his motion for a
new trial within the fourteen-day deadline. As Appellant did not comply with the time
requirements of Crim.R. 33, his motion for a new trial was properly overruled.
       {¶21} With regard to the oral requests for mistrial during the jury deliberations,
Appellant argues that the irregularity in the trial court proceedings related to the jury
deliberations materially affected his right to a fair and impartial trial.      During jury
deliberations, the trial court was informed through a note that the jury was “at a
stalemate, as a juror refuses to follow the law as set before us.”         (Tr. 487).   This
prompted Appellant’s first oral request for a mistrial, objecting to replacing the juror with
an alternate, and stating that “anything but a mistrial at this point is objected to by the
defense.”     (Tr. 489).   The trial judge interviewed the juror over the objection of
Appellant’s trial counsel, outside the presence of counsel and the Appellant, but on the
record. (Tr. 492). The trial judge determined the juror disagreed on the evidence, but
was following the law and instructions. The trial judge informed counsel of the outcome



Case No. 16 MA 0119
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of the juror interview, at which time Appellant’s trial counsel again moved the court for a
mistrial and to declare a hung jury. (Tr. 497).       The trial judge advised the jury to
continue their deliberations over the objection of Appellant’s trial counsel. (Tr. 498).
The trial judge stated to the jury:     “I’m going to instruct you to continue with your
deliberation, consider all the evidence anew, and do it with the goal of reaching a verdict
if you can do so without surrendering your honest convictions.” (Tr. 498). Shortly after
the trial court’s instructions to continue deliberations, the jury returned guilty verdicts on
the robbery and aggravated robbery charges.
       {¶22} While the events during the jury deliberations were not traditional, the
facts of the case do not demonstrate that Appellant’s right to a fair trial was adversely or
materially affected by the trial court’s interview. Upon being advised that one of the
jurors refused to follow the law, the trial court was under a duty to investigate. See
State v. Miller, 2d Dist. No. 18011, 2000 WL 1369918, *4 (stating when possible jury
misconduct is brought to the attention of the trial judge, the court has a duty to
investigate), citing State v. Rudge, 89 Ohio App.3d 429, 442, 624 N.E.2d 1069
(11thDist. 1993); Cunningham v. St. Alexis Hosp. Med. Ctr., 143 Ohio App.3d 353, 377,
758 N.E.2d 188 (8thDist. 2001) (holding that the trial court abused its discretion where it
did not conduct an inquiry of the particular juror accused of misconduct to determine
whether the defendant would receive a fair trial). Jury misconduct can include a juror
refusing to consider the evidence or forming an opinion as to guilt or innocence before
all the evidence is presented. State v. Taylor, 73 Ohio App.3d 827, 831, 598 N.E.2d
818 (4th Dist. 1991), citing Carr v. State, 22 Ohio App. 78, 153 N.E. 233 (1926); Busick
v. State, 19 Ohio 198 (1850); State v. Carter, 11 Ohio Dec.Rep. 123 (1890).
       {¶23} In State v. Gunnell, 2d Dist. No. 09-CA-0013, 2010-Ohio-4415, ¶ 173, the
court acknowledged that any inquiry of a juror after deliberations have begun cannot be
taken lightly and must only be undertaken after careful deliberation by the trial court and
counsel. In that case, a juror returned after a break in deliberations with two notes
regarding research she had conducted on the internet as to definitions in the case. Id.
at ¶ 90. The trial judge conducted a voir dire examination of the juror in the presence of
counsel and then questioned whether a curative instruction would alleviate the
prejudice. Id. at ¶ 90, 118. The prosecution moved for a mistrial, which was opposed



Case No. 16 MA 0119
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by the defense.     Id. at ¶ 142-143.        The trial court concluded the juror had been
irreparably tainted since one of the notes she brought in had a hypothetical example of
involuntary manslaughter which did not comport with Ohio law and was very prejudicial
to the State. Id. at ¶ 150. The court granted the requested mistrial, finding that it was a
manifest necessity based upon the information that the juror had acquired. Id. at ¶ 154.
       {¶24} On appeal, the court reversed the convictions, finding that the trial court
failed to act rationally, responsibly, or deliberately when confronted with the juror’s
misconduct during the second trial. Id. at ¶ 201. Further, since the defendant’s double
jeopardy rights were violated by the trial court’s improper declaration of a mistrial, it
resulted in the release of the defendant who could not be retried on the charges. Id.
The court cautioned that such consequences emphasize the need for careful
consideration of alternatives to a mistrial in the first instance and the need to conduct an
adequate investigation when confronted with juror misconduct. Id. The Ohio Supreme
Court affirmed the decision, stating that the trial judge’s inquiry of the subject juror was
limited and ineffective, and did not unearth what bias, if any, the juror absorbed as a
result of reading the forbidden material. State v. Gunnell, 132 Ohio St.3d 442, 2012-
Ohio-3236, 973 N.E.2d 243, ¶ 32. The court stated that although it was error for the
juror to conduct outside research, it was also error for the judge to make such a limited
inquiry that merely established misconduct, not any prejudice as a result of the
misconduct. Id. at ¶ 33. As a result, the record did not establish a manifest necessity to
declare a mistrial, double jeopardy attached, and the judgment of the court of appeals
barring retrial was affirmed. Id. at ¶ 40.
       {¶25} In State v. Pennington, 2nd Dist. No. 24090, 2011-Ohio-4445, ¶ 31, the
appellant argued that his counsel was ineffective for failing to request a mistrial after
irregularities during jury deliberations came to light. In that case, a juror was crying and
refusing to return to deliberations.      Id. at ¶ 32.   The trial judge consulted with the
attorneys in the case and then interviewed the juror in chambers on the record but
outside of counsel’s presence.      Id.   The trial judge inquired of the juror’s ability to
continue as a juror, to which the juror responded she could continue. Id. Appellant was
asked if he thought the juror should continue serving as a juror, and he stated that she
should. Id. The jury returned a verdict and the jurors were polled and affirmed the



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verdict. Id. The court cited the Ohio Supreme Court case of State v. Hessler, 90 Ohio
St.3d 108, 120, 2000-Ohio-30, which found that a trial court’s polling of the jury following
a similar circumstance of an upset juror provided evidence that the juror’s verdict was a
product of her own free will. In Hessler Appellant argued that juror misconduct “infected
the jury’s deliberations and polluted its recommendation” and that the court erred by not
holding a hearing in the presence of all interested parties to determine whether the jury
was unfair and biased. Id. at 115.
       {¶26} In Hessler the trial judge had been informed that a verdict had been
reached, and prior to bringing the jury into the courtroom, was alerted of an upset juror
crying in the hallway and commenting “I do not agree with any of the people in there”
and “I can’t handle the pressure.” Id. at 116. The trial judge informed the attorneys
about the distraught juror, and it was agreed that the judge should question the juror.
Id. The judge’s interview showed the judge trying to calm down the juror and remind
her of the importance of the proceeding, and that she must be true to her vote and only
answer for herself. Id. at 120. The juror repeatedly asked the judge what would happen
if she didn’t agree, commenting that everyone was yelling at her, and that “everyone will
think I’m crazy.”   Id. at 117-119.    Following the interview, the jury returned to the
courtroom and announced its decision, and when individually polled, the juror stated
that she agreed with the recommendations. Id. at 120. The court further held that if
there was a chance the juror didn’t agree with the sentences announced, she had the
chance to say so during the individual jury polling. Id. at 121. As the court stated, “[a]
jury poll’s purpose is to give each juror an opportunity, before the verdict is recorded, to
declare in open court his assent to the verdict which the foreman has returned and thus
to enable the court and the parties to ascertain with certainty that a unanimous verdict
has in fact been reached and that no juror has been coerced or induced to agree to a
verdict to which he has not fully assented.” Id., citing Miranda v. United States (C.A.1,
1958), 255 F.2d 9, 17. Crim.R. 31(D).
       {¶27} In State v. Green, 67 Ohio App.3d 72, 78, 585 N.E.2d 990 (8th Dist.1990),
the court held that it was not an abuse of discretion of the trial court to deny an oral
motion for mistrial following the polling of the jury where one of the jurors indicated she
did not agree with the guilty verdict. In that case, when one of the jurors revealed that



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she did not agree with the unanimous verdict, the court immediately and without further
instruction ordered the jury to retire for further deliberations. Id. at 75. Approximately
forty-five minutes later, the jury returned with a unanimous verdict of guilty which was
reflected in the second jury polling. Id. The court held that the appellant’s right to a fair
trial was not prejudiced in that case since the second jury polling revealed that the juror
was in agreement with the verdict. Id. at 77-78.
       {¶28}   In the instant case, the juror in question was interviewed by the trial
judge to determine if he was following the law. The jury resumed deliberations after the
trial judge’s interview, and a short time later returned a guilty verdict. The jury was
thereafter polled and the entire jury affirmed the decision. This demonstrates that the
subject juror was in agreement with the verdict. As such, Appellant’s right to a fair trial
was not prejudiced.
       {¶29} In State v. Zaragoza, 2d Dist. No. 26706, 2016-Ohio-144 ¶ 1, there were
allegations that a trial court had abused its discretion in replacing a juror during the
defendant’s second trial, and further that the trial court improperly interviewed the
dismissed juror outside the presence of counsel. In Zaragoza, one of the jurors had
become agitated during the first day of deliberations, and there were complaints to the
court’s bailiff that the juror had been verbally abusive to other jury members, and the
bailiff had observed four of the jurors crying, including the foreperson. Id. at ¶ 4. The
trial court contacted the jury foreperson to inquire about the complaints and also had the
bailiff contact an alternate juror in the event a replacement juror would be needed,
advised counsel of the situation, and had the foreperson and bailiff explain the situation
on the record. Id. The court stated its intent to interview the juror on the record without
counsel present before determining whether to remove the juror from the jury. Id. at
¶ 9. Counsel for the defendant objected to the interview without counsel present, and
further to the removal of the juror from the jury. Id. The court proceeded with a private
interview of the juror over the objection of defense counsel. Id.
       {¶30} Following the interview, the court dismissed the juror, concluding that he
was unstable, disruptive of deliberations, and a safety threat to the female jurors. Id. at
¶ 11. The court interviewed the alternate juror in the presence of counsel and replaced
the juror with the alternate, noting defense counsel’s continuing objection. Id. The jury



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restarted deliberations and later sent a note to the court that it could not reach a
unanimous verdict. Id. at ¶ 12-13. The trial court requested whether, if given more
time, it was possible to reach an agreement, to which the jury concluded it could not. Id.
at ¶ 13. As such, the court declared a mistrial. Id. at ¶ 13. Zaragoza argued that the
trial court’s decision to replace the juror prejudiced him. Id. at ¶ 17.          The court
disagreed, finding that the trial court did not abuse its discretion in removing the juror
from the jury. Id. at ¶ 23. The court stated that the defendant did not demonstrate that
the outcome of his trial would have been different had the juror not been replaced. Id.
at ¶ 26. The court further found no merit in Zaragoza’s argument that the trial court
improperly interviewed the juror without him or his counsel present, depriving him of the
right to be present during all proceedings. Id. at ¶ 29.
        {¶31} The Zaragoza court noted that “[t]he Supreme Court has made clear * * *
that erroneous communications between the judge and jury constitute good cause for a
new trial only if the communications prejudiced the defendant’s right to a fair trial. Id. at
¶ 32, citing State v. Manns, 169 Ohio App.3d 687, 2006-Ohio-5802, 864 N.E.2d 657,
(2d Dist.) ¶ 75. The court noted that there must have been a communication that was
substantive in nature and in some way prejudicial to the party complaining. Id. at ¶ 32,
citing State v. Schiebel, 55 Ohio St.3d 71, 84, 564 N.E.2d 54 (1990).             The court
determined that the juror interview only concerned the juror’s behavior and did not
discuss any legal issues, facts in controversy, applicable law, or other similar matter. Id.
at ¶ 37. As such, the court stated the communication was non-substantive, and any
error in conducting the interview in private was, at worst, harmless. Id. The court
concluded that the communications at issue in the case were non-substantive and
Zaragoza failed to demonstrate that the communications prevented him from receiving a
fair trial. Id. at ¶ 40.
        {¶32}    Here, the trial judge interviewed the juror outside the presence of
counsel, but on the record.      The trial judge did not discuss legal issues, facts in
controversy, or applicable law, but rather sought confirmation that the juror was
following the law based upon the allegations stating otherwise. Appellant’s trial counsel
had previously stated that Appellant objected to anything but a mistrial once the trial
judge received the note stating that the jury was at a stalemate. (Tr. 489). Appellant’s



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counsel was aware of the juror interview, and was informed by the trial judge that the
juror disagreed on some of the evidence, but the juror was following the law. (Tr. 496).
Appellant’s trial counsel again requested a mistrial, and the trial judge instructed the jury
to continue deliberations over the objection of Appellant. (Tr. 498). It was necessary for
the trial judge to interview the juror to eliminate the possibility of any juror misconduct
which could have prejudiced Appellant’s right to a fair and impartial jury.        The trial
judge’s interview was non-substantive in nature, and Appellant has failed to
demonstrate that the interview with the juror prevented him from receiving a fair trial.
Appellant’s objection to the interview could prohibit the judge from investigating all
possible alternatives to declaring a mistrial. If the trial court failed to investigate the
alleged misconduct of one of the jurors, and opted to declare a mistrial, it could have
resulted in the improper granting of a mistrial, and a possible double jeopardy argument.
       {¶33} We also considered whether the trial judge’s interview with the holdout
juror can be viewed as coercive, and if so, if the interview prejudiced Appellant’s
substantial right to a fair and impartial jury. In the case of State v. Howard, 42 Ohio
St.3d 18, 537 N.E.2d 188 (1989), the Ohio Supreme Court held that the former Allen
charge was not a proper supplemental charge to be given to juries which have become
deadlocked and an approved instruction was adopted to replace it, known as the
Howard charge. In that case, the facts involved the trial court issuing supplemental jury
charges, first when the jury informed the court it was unable to reach a unanimous
verdict late in the first day of deliberations, and then two days later when the jury
indicated they could not reach a unanimous verdict on the aggravated murder charge.
Id. at 19. The trial judge informed counsel of the intent to give a charge that was short
of the Allen charge, but would do a little bit more than encourage the jury to decide the
case. Id. Trial counsel for the defendant in that case objected to the supplemental
instruction. Id. Following the supplemental charge, the jury returned with a verdict of
guilty less than an hour later. Id. at 20.
       {¶34} The conviction was affirmed on appeal, and then a petition for
postconviction relief was filed, claiming ineffective assistance of counsel. Id. The trial
court dismissed the petition. On appeal, the court held that the supplemental instruction
given by the trial judge so coerced and infected the process of jury deliberation so



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jealously revered in the law, that it constituted prejudicial error affecting [appellee’s]
substantial rights to a fair and impartial jury and could not be allowed to stand. Id. The
appellate court held that counsel’s failure to raise the issue on direct appeal constituted
ineffective assistance of counsel and reversed the conviction and remanded for a new
trial. Id.
        {¶35} The Howard Court focused on whether the supplemental jury instruction
given to the jury was coercive in the sense that it pressured members of the jury who
were in the minority to abandon their positions. Id. at 21. The Court noted that many
jurisdictions had rejected the Allen charge because it lacked balance and was directed
to minority jurors only and was potentially coercive upon them to agree with those jurors
constituting the majority. Id. at 23. The Court further noted that “[c]ertainly the facts of
this case, where only one hour after the Allen charge was given, a unanimous verdict
was reached when nearly two and one-half days of deliberation had failed to produce
agreement, raise at least the inference of coercion affecting appellee’s substantial right
to a fair and impartial jury.” Id. The Howard Court remanded the case to the trial court
for a new trial, and formulated an instruction that encouraged a verdict where one can
conscientiously be reached, that was balanced, asking all jurors to reconsider their
opinions in light of the fact that others do not agree. Id. at 25.
        {¶36} Here, the trial judge interviewed the sole “holdout” juror following two
communications that had been provided to the court: one that indicated a juror would
not follow the jury instructions, and a second that stated that the jurors were at a
stalemate. During the interview of the juror, the trial judge told the juror “I’m going to
instruct the jury to go back and continue their deliberations. * * * I’m going to tell them to
do so with an open mind and reconsider all the evidence, okay? And I want you to do
the same thing, but I’m going to put that on the record with the jury.” (Tr. 494). A short
time later, the jury returned with guilty verdicts on the aggravated robbery and robbery
charges. The jury was polled, and all jurors confirmed the unanimous verdict. As the
court demonstrated in Green, supra, appellant’s right to a fair trial was not prejudiced
since the jury polling revealed that the juror was in agreement with the verdict.
        {¶37} Based upon the foregoing analysis, the trial court did not abuse its
discretion by overruling Appellant's motion for a mistrial and the motion for a new trial.



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Appellant's sole assignment of error is without merit and the judgment of the trial court is
affirmed.


Donofrio, J., concurs.
Waite, J., concurs.




Case No. 16 MA 0119
[Cite as State v. Bell, 2018-Ohio-3486.]




        For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs are waived.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                           NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
