[Cite as State v. Perchinske, 2012-Ohio-1704.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                       JUDGES:
                                                    Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2011 CA 00144
JOSEPH PERCHINSKE

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Criminal Appeal from the Canton Municipal
                                                 Court, Case No. 2011 CRB 01662


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          April 16, 2012



APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

JOSEPH MARTUCCIO                                 PATRICK L. CUSMA
CANTON LAW DEPARTMENT                            116 Cleveland Avenue NW
TYRONE D. HAURITZ                                Suite 808
CANTON CITY PROSECUTOR                           Canton, Ohio 44702
TASHA FORCHIONE
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2011 CA 00144                                                      2

Wise, J.

       {¶1}   Appellant Joseph Perchinske appeals his sentence and conviction entered

in the Canton Municipal Court on one count of domestic violence.

       {¶2}   Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   On May 10, 2011, Appellant was arrested, and charged on May 11, 2011,

with first degree Domestic Violence pursuant to R.C. §2919.25.

       {¶4}   On May 11, 2011, Appellant was arraigned and pled not guilty,

       {¶5}   On June 20, 2011, a jury trial commenced in this matter.

       {¶6}   Prior to voir dire, Appellant’s counsel made a Motion in Limine. In said

Motion, Appellant's counsel made the following request:

       {¶7}   “I would also ask that the State witnesses be prohibited - be instructed to -

to be prohibited from any mention, reference or testimony in regard to the defendant's

prior substance abuse. I understand that the prosecutor has some intention of

introducing evidence about current drug use as it relates to the fight at issue, but I would

just ask that if the Court is inclined to allow that testimony, that the- any testimony of

him having a prior drug problem or anything about prior relationships in regard to drug

problems be prohibited. (T. Vol. I at 8).

       {¶8}   In response, the State requested leave to reference Appellant's substance

abuse as it related to the argument which took place on May 10th, 2011. (T. Vol. I at 8).

       {¶9}   The trial court permitted the State to question the complaining witness

about what she and Appellant argued about on May 10, 2011. (T. Vol. I at 9). The trial

court, however, granted the Motion in Limine regarding prior substance abuse. Id.
Stark County, Case No. 2011 CA 00144                                                     3

       {¶10} During voir dire, the assistant prosecutor informed the jury that "there may

be some evidence today that there was an argument regarding drug usage." (T. Vol. I at

28). The prosecutor then asked the potential jurors "is there anybody out there today

who thinks that consuming drugs or alcohol should excuse you from your behavior?" (T.

Vol. I at 28).

       {¶11} Appellant's trial counsel raised no objection.

       {¶12} In response to this question, Juror Twenty-Three stated:

       {¶13} "I don't - I - I think people use alcohol and drugs for an excuse to do what

they want - actually what they want to do. I don't think it's right, they use it for an

excuse." (T. Vol. I at 29). No other jurors responded in the affirmative at that time.

       {¶14} The prosecutor then asked the prospective jurors whether they thought

that the State should proceed with a case when a victim is not cooperative. (T. Vol. I at

29-31).

       {¶15} Juror Twenty-Nine responded in the affirmative, explaining that her niece

was accused of a crime and the State dropped charges based on the victim's request.

(T. Vol. I at 32). She went on to state that she "thought it was fair because there were

drugs and alcohol involved," but also stated, "I don't know - you know what I mean - if it

was the best thing for her or not in the end." (T. Vol. I at 32). The trial court then took

Juror Twenty-Nine into chambers where she further explained that her niece had

substance abuse and mental health problems and that in her niece's case, the State

dropped the charges on the condition that the defendant seek treatment. (T. Vol. I at 33-

34).
Stark County, Case No. 2011 CA 00144                                                      4


       {¶16} Appellant's trial counsel asked juror twenty-nine whether she was open to

hearing that allegations of substance abuse were untrue. (T. Vol. I at 36). Juror twenty-

nine responded, "Well, I haven't made a decision on him, no. So, you know, I mean, I

guess I would be open to hearing the facts about what we think why he did use or didn't-

you know, I mean, yes, I could be open to hearing that. I think I'm fair." Id.

       {¶17} The parties returned to open court and the prosecutor asked the

prospective jurors whether anyone has either been a victim or knew a victim of domestic

violence. (T. Vol. I at 37). Juror twenty-three responded in the affirmative and stated that

she was a victim of domestic violence. Upon further inquiry, juror twenty-three stated,

"It's my ex-husband. He's deceased now. He used drugs and alcohol, and he'd go out

and get drunk, come home and beat me while I was sleeping." Id.

       {¶18} The trial court then took juror twenty-three in chambers where she

explained her situation, and stated:

       {¶19} "I thought I could change him because I worked and then it seemed like

the more I worked the more he did drugs and the alcohol, and then it started getting

abusive and I just divorced him and then he got sick." (T. Vol. I at 40).

       {¶20} The prosecutor asked juror twenty-three whether she would be

comfortable if selected to serve on this jury, and she replied:

       {¶21} "I mean it's been sixteen years, so I mean it's not that I hold grudges

against anybody or have any animosity or anything, you know. I just don't think drugs or

alcohol is an excuse for people to do what they're doing. Because they know. They

know right from wrong." (T. Vol. I at 41).
Stark County, Case No. 2011 CA 00144                                                       5


       {¶22} Appellant's trial counsel asked a series of questions including, "Are you

open to the idea that this person might not be using substances as well? Are you open -

have you already made your decision? Do you think you can make a decision based

upon the evidence in the courtroom ... and not on any [past history]. (T. Vol. I at. 41-42).

       {¶23} Juror twenty-three answered "Yes." (T. Vol. I at 42-43).

       {¶24} In open court, the prosecutor then asked whether anyone in the audience

was a victim of any other crime. Juror forty-three, among others, had positive

responses. (T. Vol. I at 55-56).

       {¶25} Juror forty-three stated that she was a victim of identity theft, and the

perpetrator was a family member. (T. Vol. I at 56). Upon taking juror forty-three into

chambers, juror forty-three explained that her daughter was involved with a man, and

the two of them engaged in identity fraud. (T. Vol. I at 57). Juror forty-three stated

several times that she wanted her daughter to go to rehab in lieu of jail. (T. Vol. I at 57-

60). Additionally, juror forty-three expressed concerns about domestic violence and

substance abuse. She stated:

       {¶26} "I think about how he treated her and, urn, there might have been domes-,

domestic violence, you know, but she didn't tell me about it. And it could have been. I

mean the way he was, you know, the drugs and the drinking." (T. Vol. I at 61).

       {¶27} The trial court asked juror forty-three whether she could be fair and

impartial and she stated:

       {¶28} "I could have an open mind, but I I'm not sure, you know? Because of

what happened. It was such- and it took a long time for everybody to get situated, you
Stark County, Case No. 2011 CA 00144                                                        6


know, especially my daughter and- but he's still like that, you know. You know? He's- he

hasn't changed, and you know, that is in the back of my mind." (T. Vol. I at 61-62).

          {¶29} The parties returned to open court, and voir dire continued. The

prosecutor asked the prospective jurors whether there was anything in their background

or history that may disqualify them for jury service. (T. Vol. I at 77). Juror forty-five

answered affirmatively, stating:

          {¶30} "I have a daughter and I just believe that, you know, if a man is going to hit

a woman, that you don't do that.”

          {¶31} “You gonna- you gonna hit a woman I say you're a coward and no matter

what (word inaudible), so just by looking and seeing him, I would convict him." (T. Vol. I

at 78).

          {¶32} Appellant's trial counsel followed up, and asked:

          {¶33} “…Is there anybody else who feels like that? Is there anybody else who

says “You know, take one look at somebody and the charge that they’re facing, it’s just

too much for me to handle” …?”

          {¶34} Juror eighteen had a positive response, and went in chambers. Outside of

the presence of other jurors, juror eighteen stated:

          {¶35} “Um, I guess in my opinion I've seen a lot of this before with the job

profession I've done. I no longer do that but I, you know, I feel that I'm a good

upstanding citizen. I work two full time jobs and I go to school full time and the very fact

that I'm here because of some guy accusidly [sic] couldn't handle his alcohol or drugs

pisses me off, the fact that he hit a woman. Whether he is guilty or not guilty, just the

whole point of the job that I have had and seeing people deal with alcohol, just - this -
Stark County, Case No. 2011 CA 00144                                                     7


the whole thing irritates me. And I – I don't believe that there's any reason whatsoever,

alcohol or drugs, whatever, why he should hit a woman. So, I mean I guess I'm just

more on the point of, you know, for -for you know, I guess excuse the way that I put it

but for somebody to hit a woman and me have to sit here and listen to that, it just- it

irritates me. (T. Vol. I at 80-81).

          {¶36} However, upon further questioning, juror eighteen stated that he had

“more or less” prejudged the Appellant and that he also thought he may have seen him

in some of the bars where he had worked. (T. Vol. I at 82).

          {¶37} Voir Dire continued, and the trial court questioned juror twenty-eight

regarding her position as a GED teacher at Day Reporting for the Common Pleas Court.

(T. Vol. I at 84). Juror twenty-eight explained, in chambers, that she is trained to be non

judgmental and would concern herself with punishment if selected as a juror. (T. Vol. I

at 86).

          {¶38} At this point, Appellant’s trial counsel expressed a concern regarding the

number of references to substance abuse, and argued that he believed the jury "has

been completely swayed and tainted by that line of questioning." (T. Vol. I at 87). Trial

counsel then moved for a mistrial. (T. Vol. I at 88).

          {¶39} The trial court overruled the motion, noting that the State asked a "fact

specific" question, to which trial counsel did object. (T. Vol. I at 88).

          {¶40} Appellant’s counsel also moved for a mistrial on the grounds that two

people "expressed very strong opinions on domestic violence in front of other jurors”

and expressed her concern that only a "handful" of jurors would remain after challenges
Stark County, Case No. 2011 CA 00144                                                     8


for cause. (T. Vol. I at 89). The court overruled counsel's second motion as premature.

Id.

       {¶41} Trial counsel completed voir dire, and the parties selected a jury. The

State challenged jurors fourteen, twenty-nine, and twenty-eight for cause. (T. Vol. I at

105). Appellant challenged jurors eighteen, twenty-three, and forty-five for cause. (T.

Vol. I at 106-108). The court dismissed all six jurors. (T. Vol. I at 105-108).

       {¶42} Jurors twenty-seven, forty-three, thirty-eight, twenty-six A, forty-six A, and

twenty-five were dismissed based on peremptory challenges. (T. Vol. I at 110-111). The

final jury included jurors five A, six, twelve, nineteen, twenty-one, twenty-one A, twenty-

four, thirty-one, and forty (alternate). (T. Vol. I at 114).

       {¶43} Appellant’s trial counsel renewed his motion for mistrial based on "strong

opinions" of prospective jurors, which the trial court overruled. (T. Vol. I at 113).

       {¶44} The trial court empaneled a jury and instructed the jurors not to "be

influenced in your decision by sympathy, prejudice or passion toward any party,

witness, or attorney in this case." (T. Vol. I. at 116).

       {¶45} Additionally, the trial court advised the jurors that they must "decide this

case based solely on the evidence that is presented to you in this courtroom." (T. Vol. I

at 117).

       {¶46} The trial then proceeded with opening statements. During the State's

opening, the prosecutor referenced police interviews with both the victim and appellant.

In particular, the prosecutor stated:

       {¶47} "When the police arrived at the home, they did speak to both the victim

and the defendant in this case. They got some information about what happened. The
Stark County, Case No. 2011 CA 00144                                                   9


victim told her version of events and the defendant of course gave a different version of

events." (T. Vol. I at 126).

       {¶48} Appellant’s trial counsel objected, and moved again for a mistrial in

chambers, arguing that the State's reference to police interviews improperly referenced

Appellant's constitutional right not to incriminate himself. (T. Vol. I at 126-127). The

State argued that the statement was admissible under Evid.R. 801(0)(2). Id. The trial

court overruled said motion. (T. Vol. I at 127).

       {¶49} The trial proceeded, with the State calling the victim Megan Kennard, a

neighbor Penelope Peters, Officer Tim Marks, 9-1-1 Operator Debbie Runyon and

Detective Jeff Weller.

       {¶50} Appellant presented no evidence.

       {¶51} Following deliberations, the jury found Appellant guilty.

       {¶52} By Judgment Entry filed June 21, 2011, the trial court sentenced Appellant

to 180 days in the Stark County Jail, with all but 90 days suspended. Appellant was

credited with two (2) days of jail time. Appellant was also ordered to complete

Melymbrosia/Voyager and was placed on direct probation for 2 years.

       {¶53} Appellant now appeals, assigning the following errors for review:

                                  ASSIGNMENTS OF ERROR

       {¶54} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT

GRANTING DEFENDANT'S MOTIONS FOR MISTRIAL.

       {¶55} “II. APPELLANT'S COUNSEL'S FAILURE TO OBJECT TO THE DRUG-

ALCOHOL       QUESTION         DURING    VOIR      DIRE   CONSTITUTED     INEFFECTIVE

ASSISTANCE OF COUNSEL.
Stark County, Case No. 2011 CA 00144                                                     10


       {¶56} “III. THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT

DECLARING A MISTRIAL.

       {¶57} “IV. THE CUMULATIVE EFFECTS OF ERRORS IN THE TRIAL DENIED

APPELLANT A FAIR TRIAL”

                                              I., III.

       {¶58} We shall address Appellant’s first and third Assignments of Error

simultaneously as Appellant contends in both assignments that the trial court erred in

not granting a mistrial in this matter.

       {¶59} Specifically, Appellant argues that the trial court should have granted a

mistrial based on the prosecutor’s questions to the jury panel during voir dire as to

whether drug or alcohol use should serve as an excuse for a person’s behavior.

       {¶60} Initially, we note that Appellant’s counsel failed to object to such question

during voir dire. Accordingly, Appellant has waived all but plain error. State v. Wooten,

Stark App. No. 2008 CA 00103, 2009-Ohio-1863 at ¶ 38. (Citing State v. McKnight,

1007 Ohio St.3d 101, 2005-Ohio-6046 at ¶ 185).

       {¶61} In criminal cases where an objection is not raised at the trial court level,

“plain error” is governed by Crim.R. 52(B), which states, “Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.” An alleged error “does not constitute a plain error ... unless, but

for the error, the outcome of the trial clearly would have been otherwise.” State v. Long

(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of the syllabus.

       {¶62} As the United States Supreme Court recently observed in Puckett v.

United States (2009), --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an
Stark County, Case No. 2011 CA 00144                                                  11


error is not properly preserved, appellate-court authority to remedy the error (by

reversing the judgment, for example, or ordering a new trial) is strictly circumscribed.

There is good reason for this; ‘anyone familiar with the work of courts understands that

errors are a constant in the trial process, that most do not much matter, and that a

reflexive inclination by appellate courts to reverse because of unpreserved error would

be fatal.’ ” (Citation omitted).

       {¶63} “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant's substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,

2010), 560 U.S. ----, 130 S.Ct. 2159, 176 L.Ed.2d 1012, 2010 WL 2025203 at 4.

(Internal quotation marks and citations omitted).

       {¶64} The defendant bears the burden of demonstrating that a plain error

affected his substantial rights. United States v. Olano (1993), 507 U.S. at 725,734, 113

S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even if

the defendant satisfies this burden, an appellate court has discretion to disregard the

error. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Long

(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; Perry,

supra, at 118, 802 N.E.2d at 646.
Stark County, Case No. 2011 CA 00144                                                    12


       {¶65} Appellant herein argues that the prosecutor’s question amounted to

prosecutorial misconduct because the prosecutor never produced any evidence to

support the question, thereby tainting the jury.

       {¶66} Upon review, we find that aside from Appellant’s assertion that the jury

was tainted, Appellant has failed to demonstrate that the outcome of the trial would

have been different if the prosecutor had not asked such question.

       {¶67} Further, the jurors who had affirmative responses were all dismissed and

no evidence was presented to show that the jurors who were empaneled were not

impartial or were tainted by the responses of those dismissed jurors.

       {¶68} Appellant’s first and third Assignments of Error are overruled.

                                                   II.

       {¶69} Appellant, in his second Assignment of Error, argues that his trial counsel

was ineffective in not objecting to the drug/alcohol question during voir dire.        We

disagree.

       {¶70} “The standard of review of an ineffective-assistance-of-counsel claim is

well established. Pursuant to Strickland v. Washington (1984), 466 U.S. 668, 687, in

order to prevail on such a claim, the appellant must demonstrate both (1) deficient

performance and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so

serious that there exists a reasonable probability that in the absence of those errors, the

result of the trial court would have been different. State v. Bradley (1989), 42 Ohio St.3d

136.” State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, ¶ 26.

       {¶71} Here, Appellant argues that counsel was ineffective in not objecting to the

prosecutor’s question during voir dire regarding drug/alcohol use. In support, Appellant
Stark County, Case No. 2011 CA 00144                                                   13


offers that the trial court indicated that it may have granted an objection had it been

made at the appropriate time. (T. at 88-89).

        {¶72} Upon review under the first prong of the Strickland analysis, we do not find

that Appellant’s trial counsel fell below an objective standard of reasonableness.

Appellant’s counsel made a motion in limine to prevent any references to Appellant’s

prior drug and/or alcohol use, which was granted. Further, Appellant’s counsel made

four motions for mistrial based on “strong opinions” expressed by the jurors during voir

dire.

        {¶73} Further, as set forth in our analysis above, Appellant has failed to

demonstrate that the outcome of the trial in this matter would have been different had

counsel objected to this question.

        {¶74} Appellant’s third Assignment of Error is overruled.

                                                IV.

        {¶75} In his final Assignment of Error, Appellant argues that the cumulative

effect of errors denied him a fair trial. We disagree.

        {¶76} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, as

explained in State v. Bethel, 110 Ohio St.3d 416, 2006–Ohio–4853, 854 N.E.2d 150, ¶

197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105

Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103.

        {¶77} Where we have found that the trial court did not err, as we have in the

case sub judice, cumulative error is simply inapplicable. State v. Carter, 5th Dist. No.

2002CA00125, 2003-Ohio-1313 at ¶ 37.
Stark County, Case No. 2011 CA 00144                                           14


      {¶78} Appellant’s fourth Assignment of Error is overruled.

      {¶79} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is affirmed.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 0327
Stark County, Case No. 2011 CA 00144                                          15


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




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JOSEPH PERCHINSKE                          :
                                           :
       Defendant-Appellant                 :         Case No. 2011 CA 00144




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
