[Cite as State v. Lightner, 2009-Ohio-4443.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                   CASE NO. 6-09-02

    v.

JESSE LEE LIGHTNER,                                         OPINION

    DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. CRI 20082133

                                      Judgment Affirmed

                             Date of Decision: August 31, 2009




APPEARANCES:

         Todd A. Workman for Appellant

         Maria Santo for Appellee
Case No. 6-09-02




ROGERS, J.

       {¶1} Defendant-Appellant, Jesse Lee Lightner, appeals the judgment of

the Hardin County Court of Common Pleas convicting him of receiving stolen

property, tampering with evidence, breaking and entering, grand theft, and

engaging in a pattern of corrupt activity. On appeal, Lightner contends that the

trial court erred by giving a particular supplemental instruction to the deadlocked

jury, in violation of his Fifth and Sixth Amendment rights. Based upon the

following, we affirm the judgment of the trial court.

       {¶2} In July 2008, the Hardin County Grand Jury indicted Lightner for

Count One: receiving stolen property in violation of R.C. 2913.51(A),(C), a felony

of the fourth degree; Count Two: tampering with evidence in violation of R.C.

2921.12(A)(1),(B), a felony of the third degree; Count Three: breaking and

entering in violation of R.C. 2911.13(A), a felony of the fifth degree; Count Four:

breaking and entering in violation of R.C. 2911.13(B), a felony of the fifth degree;

Count Five: grand theft in violation of R.C. 2913.02(A)(1), (B)(2), a felony of the

fourth degree; and, Count Six: engaging in a pattern of corrupt activity in violation

of R.C. 2923.32(A)(1), (B)(1), a felony of the first degree. The indictment arose

after Lightner allegedly participated in a scheme to steal a trailer from Hancock

County and sell it in Hardin County. Lightner entered a plea of not guilty to all

counts in the indictment.


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        {¶3} In January 2009, the State filed a motion to dismiss Count Three,

which the trial court granted. Thereafter, the case proceeded to trial.

        {¶4} After the close of testimony and approximately forty-five minutes

after the jury began to deliberate, the jury foreman delivered a question to the

bailiff stating the following: “To the best of my ability, we are not in agreement.

Kimberly A. Collins. If no decision, what happens with defendant.” The trial

court stated to counsel its intention to bring the jury back in, remind them of their

duties pursuant to the written instructions, and advise them that they needed to

make more than a forty-five minute effort at attempting to reach a conclusion.

Lightner’s counsel objected to the trial court’s proposal and stated that he wished

the trial court to “stick to the proposed jury instructions and instruct them that they

should give more time to consider those instructions.” (Trial Tr., p. 305). The

trial court noted Lightner’s objection, and proceeded to state the following to the

jury:

        Ladies and gentlemen of the Jury the Court is in receipt of your
        question. While the Court believes that you are making an
        honest effort, the Court cannot believe that in forty five minutes
        you have precluded any possibility of resolving this case. There
        are a lot of things that need to be considered. I would suggest
        you go back and re-read the written jury instructions that the
        Court supplied you concerning the fact that the Defendant can
        be found guilty or not guilty as to each count individually, that
        this is not a package case, and I suggest you take that approach
        and see what you can agree on, see what you can disagree on,
        and move on. Really, at this point in time, I think you need to go
        back in and look at the instructions and listen to each other and
        try to come up with a solution to this case. As far as the second


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      part of the inquiry, it’s really not for you to even consider the
      ramifications of your action. Your action is to reach a verdict,
      okay, regardless of what that verdict is. So that being said,
      thank you for coming in, thank you for staying with it, and
      please try to reach a conclusion in this matter. * * *

(Trial Tr., pp. 305-306). Lightner did not object during or subsequent to the

supplemental instruction.

      {¶5} After continuing deliberations, the jury returned a verdict finding

Lightner guilty of Count One: receiving stolen property in violation of R.C.

2913.51(A),(C); Count Two: tampering with evidence in violation of R.C.

2921.12(A)(1),(B); Count Four: breaking and entering in violation of R.C.

2911.13(B); Count Five: grand theft in violation of R.C. 2913.02(A)(1), (B)(2);

and, Count Six: engaging in a pattern of corrupt activity in violation of R.C.

2923.32(A)(1), (B)(1).

      {¶6} The trial court proceeded to find that Counts One and Five were

allied offenses and merged them for sentencing purposes. The trial court then

sentenced Lightner to a ten-month prison term for Count Four; a ten-month prison

term for Count Five; a two-year prison term for Count Two; and, a seven-year

prison term for Count Six. The trial court ordered Lightner to serve his prison

term for Count Four concurrently with Count Five and consecutively to Counts

Two and Six.

      {¶7} It is from this judgment that Lightner appeals, presenting the

following assignments of error for our review.


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                            Assignment of Error No. I

      THE TRIAL COURT ERRED BY GIVING SUPPLEMENTAL
      INSTRUCTIONS TO THE JURY, OVER DEFENSE
      COUNSELS [SIC] OBJECTIONS, WHICH WERE IN DIRECT
      VIOLATION OF THOSE INSTRUCTIONS APPROVED BY
      THE OHIO SUPREME COURT IN STATE V. HOWARD
      (1989), 42 OHIO ST.3D 18.

                           Assignment of Error No. II

      THE TRIAL COURT DENIED APPELLANT HIS FIFTH
      AMENDMENT RIGHT OF DUE PROCESS AS WELL AS HIS
      SIXTH AMENDMENT RIGHT TO A TRIAL BY AN
      IMPARTIAL JURY WHEN IT IMPROPERLY COERCED
      THE   JURY    WITH IMPROPER    SUPPLEMENTAL
      INSTRUCTIONS.

       {¶8} Due to the nature of Lightner’s arguments, we elect to address his

assignments of error together for ease of discussion.

                         Assignments of Error Nos. I & II

       {¶9} In his first assignment of error, Lightner contends that the trial court

erred in giving the supplemental instruction to the jury over his objection on the

basis that the instruction given was not the instruction approved by the Supreme

Court of Ohio in State v. Howard (1989), 42 Ohio St.3d 18. In his second

assignment of error, Lightner argues that the supplemental instruction was

improper because it coerced the jury, denying him his Fifth Amendment right of

due process and his Sixth Amendment right to trial by impartial jury. Specifically,

Lightner claims that the instruction was coercive because it stressed that the jury




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must reach a verdict and misled them to believe that a hung jury was not an

option, in contravention of the guidelines set forth by Howard. We disagree.

       {¶10} Initially, we note that the State argues that Lightner has waived all

but plain error because he objected to the giving of any supplemental instruction,

but did not object to the instruction itself as being contrary to Howard, or request

that a Howard instruction be given.       However, we find that Lightner clearly

objected on the record to the giving of a supplemental instruction, and find his

objection sufficiently preserved the error for our review.

       {¶11} Jury instructions are within the trial court’s discretion.    State v.

Guster (1981), 66 Ohio St.2d 266, 271. Accordingly, a trial court’s decision

whether to give a Howard instruction is within its discretion, and this court will

not reverse that decision absent an abuse of discretion. State v. Thomas, 2d Dist.

No. 2000-CA-43, 2001-Ohio-1353, citing State v. King, 7th Dist. No. 95 CA 163,

2000 WL 309393. An abuse of discretion connotes that the trial court’s decision

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219.

       {¶12} In Howard, the Supreme Court of Ohio expressly approved of the

following supplemental instruction to be given to juries deadlocked on the

question of conviction or acquittal:

       The principal mode, provided by our Constitution and laws, for
       deciding questions of fact in criminal cases, is by jury verdict. In
       a large proportion of cases, absolute certainty cannot be attained


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      or expected. Although the verdict must reflect the verdict of
      each individual juror and not mere acquiescence in the
      conclusion of your fellows, each question submitted to you
      should be examined with proper regard and deference to the
      opinions of others. You should consider it desirable that the case
      be decided. You are selected in the same manner, and from the
      same source, as any future jury would be. There is no reason to
      believe the case will ever be submitted to a jury more capable,
      impartial, or intelligent than this one. Likewise, there is no
      reason to believe that more or clearer evidence will be produced
      by either side. It is your duty to decide the case, if you can
      conscientiously do so. You should listen to one another's
      arguments with a disposition to be persuaded. Do not hesitate to
      reexamine your views and change your position if you are
      convinced it is erroneous. If there is disagreement, all jurors
      should reexamine their positions, given that a unanimous verdict
      has not been reached. Jurors for acquittal should consider
      whether their doubt is reasonable, considering that it is not
      shared by others, equally honest, who have heard the same
      evidence, with the same desire to arrive at the truth, and under
      the same oath. Likewise, jurors for conviction should ask
      themselves whether they might not reasonably doubt the
      correctness of a judgment not concurred in by all other jurors.

42 Ohio St.3d at 25-26. We note that virtually the same instruction has been

adopted by the Ohio Jury Instructions. See Ohio Jury Instructions (2008), Section

CR 429.09(2).

      {¶13} In formulating the Howard instruction, the Supreme Court of Ohio

was “mindful of several competing factors when giving a supplemental instruction

to a divided jury and attempted to accommodate those factors.” State v. Troglin,

3d Dist. No. 14-04-41, 2005-Ohio-6562, ¶46, citing Howard, 42 Ohio St.3d at 23-

24. Particularly, the instruction may not isolate jurors holding the minority

position and direct them to reconsider their positions. Id., citing Howard, 42 Ohio


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St.3d at 24. Additionally, the instruction may not coerce the jury by stressing that

it must reach a verdict. Id. Moreover, through the instruction, the trial judge must

remind the jury of its purpose—to reach a unanimous decision. Id. Finally, the

instruction must be balanced and neutral, ask all of the jurors to reconsider their

opinions, and encourage a verdict. Id., citing Howard, 42 Ohio St.3d at 24-25.

       {¶14} Furthermore, this Court has previously found that “[t]here is no

bright line rule that may be used to determine when a jury is deadlocked and when

the supplemental charge should be read to the jury.” State v. Gary, 3d Dist. No. 5-

99-51, 2000-Ohio-1679, citing State v. Minnis, 10th Dist. No. 91AP-844, 1992

WL 30720. Additionally, “[i]t is a well-settled principle that the law encourages

jurors to agree, not to deadlock, and a court may urge a jury to make [every]

reasonable effort to reach a verdict.” Id., citing State v. Sabbah (1982), 13 Ohio

App.3d 124, 138. Finally, the Howard instruction is to be given to a jury “‘when

determination has been made that the jury is deadlocked in its decision.’” Id.,

quoting Minnis, supra.

       {¶15} In Gary, supra, this Court determined that a trial court did not err in

failing to deliver a Howard instruction after the jury commented that it may have

been deadlocked only four hours into deliberations. In making this decision, we

found that “[s]everal courts have agreed that an initial comment by the jurors after

only a short period of deliberation does not require that the Court immediately




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give a Howard instruction.” Gary, citing State v. Dickens, 1st Dist. No. C-960365,

1998 WL 226537, State v. Beasley, 1st Dist. No. C-980535, 1999 WL 162453.

       {¶16} Here, the jury deliberated for only forty-five minutes on the five-

count case before indicating to the trial court that they were “not in agreement”

and inquiring what would happen if there was “no decision.” Thus, they did not

indicate that they were deadlocked.        Additionally, the trial court made no

determination that the jury was deadlocked. We find this situation to be similar to

that presented in Gary—an initial comment by the jurors after a very short period

of deliberation. Such a situation does not require the trial court to immediately

give a Howard instruction. See Gary, supra; Dickens, supra; Beasley, supra.

Thus, we find that the trial court did not abuse its discretion in failing to give the

supplemental instruction for deadlocked juries set forth in Howard and adopted by

the Ohio Jury Instructions.

       {¶17} Next, Lightner contends that the instruction given by the trial court

did not comport with the balance of factors required by the Howard instruction.

However, it is well-established that a trial court may urge the jury to make

reasonable efforts to reach a verdict. See Gary, supra. After examining the trial

court’s instruction given here, we find that the trial court did exactly that. The

trial court merely told the jury it needed to spend more than forty-five minutes

deliberating, instructed them to re-read the written instructions, and directed them

to attempt to reach a conclusion. We do not find that this instruction coerced the


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jury into reaching a verdict or misled them into believing a hung jury was not an

option.

         {¶18} Accordingly, we overrule Lightner’s first and second assignments of

error.

         {¶19} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jnc




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