[Cite as State v. Stephenson, 2013-Ohio-771.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ADAMS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA936
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
ELMER E. STEPHENSON,           : ENTRY
                               :
    Defendant-Appellant.       : Released: 02/26/13
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Valerie Kunze, Assistant
State Public Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant
Adams County Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.

        {¶1} Appellant, Elmer Stephenson, appeals the judgment of the

Adams County Court of Common Pleas. Appellant was convicted of gross

sexual imposition, in violation of R.C. 2907.05(A)(1), a fourth degree

felony. Appellant contends the trial court erred by: (1) deviating from the

language of the Howard charge when it gave the instruction to the

deadlocked jury; and, (2) by providing a definition of “knowingly” that did

not comport with Ohio law. Upon review, we find no plain error occurred

when the trial court modified the language of the Howard charge it gave to
Adams App. No. 12CA936                                                            2


the jury and further, no plain error occurred by the trial court’s inclusion of

the definition of “knowingly” in the jury instructions. As such, we overrule

both assignments of error and affirm the judgment of the trial court.

                                    FACTS

      {¶2} On July 7, 2011, Appellant Elmer Stephenson was indicted by

the Adams County Grand Jury on two counts of gross sexual imposition and

one count of kidnapping, based on allegations made by Chasity Morrison. At

the time of the alleged incident, Appellant was 68 years old and used

oxygen. Ms. Morrison was his home health care aide, age 26. She assisted

Appellant by cleaning and running errands.

      {¶3} The indictment stemmed from an incident Ms. Morrison reported

to the West Union Police. Morrison alleged in early 2011, while she was

doing dishes at the kitchen sink in Appellant’s home, he came up behind her

and put his hands inside her clothes. The State of Ohio presented three

witnesses: Sgt. Don Adams of the Adams County Sheriff’s Department,

Kenneth Dick, an investigator with the Adams County Prosecutor’s Office,

and Ms. Morrison. Ms. Morrison testified that when he put his hands inside

her clothes, he touched her “right beside her vagina,” and also “underneath

her bra line.” She further testified she “tried to leave” but was successful

only when Appellant “just stopped.” Appellant declined to testify at trial.
Adams App. No. 12CA936                                                         3


      {¶4} The jury began deliberating at 3:00 p.m. on the second day of

trial. At 3:40 p.m., the jury inquired: “Why are there two sexual imposition

charges? And then it’s got one for the charge of sexual contact of the pubic

region? One for the charge of sexual contact of the breast region?

Clarification please.” All parties agreed to the court’s written response,

which was “Yes.” At 5:51 p.m., the jury inquired “What happens if all 12

jurors cannot come to agreement on all three counts?” The court brought the

jury back to the courtroom and engaged in dialogue with them about their

inability to reach a unanimous decision and possible recess for the day. The

jury returned to deliberations.

      {¶5} At 8:00 p.m., the jury submitted a note indicating that they were

unable to reach a unanimous verdict and believed “as a whole that a

unanimous decision will not be made at any time.” The court then issued a

Howard charge and released the jury. The jury returned the next day at

10:00 a.m. and the court gave them a second Howard charge with additional

instructions. At 2:30 p.m., the jury returned a verdict of guilty on count one,

gross sexual imposition, and not guilty on the remaining counts. This appeal

followed.

                         ASSIGNMENTS OF ERROR

I.    “THE TRIAL COURT ERRED IN ITS DEVIATION FROM THE
      HOWARD CHARGE WHEN IT GAVE INSTRUCTION TO THE
Adams App. No. 12CA936                                                           4


      DEADLOCKED JURY AND THEREBY DEPRIVED MR.
      STEPHENSON OF HIS RIGHT TO A FAIR TRIAL BEFORE A
      PROPERLY INSTRUCTED JURY, AND OF HIS RIGHT TO DUE
      PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH,
      AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION, AND BY SECTIONS 10 AND 16 OF THE OHIO
      CONSTITUTION.”

II.   “THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE
      JURY BY INEXPLICABLY PROVIDING THE DEFINITION OF
      KNOWINGLY, AND THEREBY DEPRIVED MR. STEPHENSON
      OF HIS RIGHT TO A FAIR TRIAL BEFORE A PROBPERLY
      INSTRUCTED JURY, AND OF HIS RIGHT TO DUE PROCESS
      OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND
      FOURTEENTH AMENDMENTS TO THE UNITED STATES
      CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF
      THE OHIO CONSTITUTION.”

                             LEGAL ANALYSIS

      The Howard Charge

      {¶6} In his first assignment of error, Appellant contends that the trial

court erred in its deviation from the Howard charge when it failed to use,

verbatim, the language approved in State v. Howard, 42 Ohio St. 3d 18, 537

N.E.2d 188 (1989). In support of his argument, Appellant cites State v.

Andricks, 111 Ohio App.3d 93, 675 N.E.2d 872 (3rd. Dist. 1996). In

Andricks, the appellate court held that the cumulative effect of errors in the

giving of an altered Howard instruction could not help but confuse and

mislead the jury. Thus, the discrepancies in language rose to the level of

plain error. The appellate court further held that there would seem to be no
Adams App. No. 12CA936                                                           5


good reason for the trial court to deviate from the verbatim syllabus

language provided in Howard.

      {¶7} Here, similar to the circumstances in Andricks, the transcript

reveals that Appellant did not object to the court’s altered Howard

instruction when it was given at the end of the second day of trial, although

he was twice given the opportunity on that date to do so. The transcript also

reveals that Appellant did not object to the giving of the altered Howard

charge when he was given yet a third opportunity to do so on the morning of

the third day of trial. The failure to object to a jury instruction waives any

claim of error relative to that instruction, unless, but for the error, the

outcome of the trial clearly would have been otherwise. State v. Barrett, 4th

Dist. No. 03CA2889, 2004-Ohio-2064, 2004 WL 878002, ¶21. See, e.g.,

State v. Nolling, 98 Ohio St.3d 44, 781 N.E.2d 88 (2002).

      {¶8} Notice of plain error under Crim.R.52 (B) is to be taken with the

utmost of caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice. Barrett, ¶21. See, e.g. State v. Barnes, 94

Ohio St. 3d 21, 27 759 N.E.2d 1240 (2002); State v. Hill, 92 Ohio St.3d 191,

196, 749 N.E. 2d 274 (2001). Plain error should not be invoked unless it can

be said that, but for the error, the outcome of the trial would clearly have

been otherwise. See, e.g., State v. Jackson, 92 Ohio St.3d 436, 438, 751
Adams App. No. 12CA936                                                         6


N.E.2d 946 (2001); State v. Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90

(2001). However, unlike the appellate court in Andricks, we do not believe

that the circumstances in the case at bar merit a finding of plain error.

      {¶9} In State v. Howard, the Supreme Court of Ohio approved the

following supplemental instruction for those cases in which a jury indicates

to the trial judge that they are unable to reach a unanimous verdict and are

considered to be deadlocked:

      “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 or
      expected. Although the verdict must reflect the verdict of each
      individual juror and not mere acquiescence in the conclusion of your
      fellows, each questions 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.”
Adams App. No. 12CA936                                                                               7


        {¶10} We have readily acknowledged that the better practice is to give

the precise Howard instruction as approved by the Supreme Court of Ohio.

Barrett, ¶29. See, e.g., State v. Lopez, 90 Ohio App.3d 566, 582, 630

N.E.2d 32 (1993). See, e.g., State v. Clifton, 172 Ohio App.3d 286, 2007-

Ohio-3392, 872 N.E.2d 1310, ¶31. However, as aptly noted by the Eighth

District Court of Appeals, the Howard charge is not an absolute mandate for

trial courts to follow, but rather a suggestion. Id. See, e.g., State v. Williams,

8th Dist. No. 66864, 1995 WL 396369 (Jul.5, 1995). If a court deviates

from the Howard language, the court must ensure that the charge satisfies

the concerns of the Howard opinion. Barrett, ¶29. In particular, a court must

ensure that the instruction (1) encourages a unanimous verdict only when

one can conscientiously be reached, leaving open the possibility of a hung

jury and resulting mistrial, and (2) calls for all jurors to reevaluate their

opinions, not just the minority members. Id; also see State v. Matyas, 7th

Dist. No. 98-JE-14, 2000-Ohio-267, 2001 WL 1808575 (Dec. 6, 2000).

        {¶11} Appellant takes issue with the modified language of the

Howard charge at several places in the transcript. We will compare the

passages with which Appellant takes issue,1 keeping in mind the two

principle concerns of the Howard opinion.

1
 To clearly illustrate the differences between the verbatim Howard language and the altered Howard
charge given to the jury in these proceedings, the variations in word choice have been italicized.
Adams App. No. 12CA936                                                          8


      (1) The precise Howard charge begins:

            The principal mode, provided by our Constitution and laws, for
      deciding questions of fact in criminal cases, is by jury verdict.

      By contrast, the trial court here stated:

             Now, returning to that which we commenced with this trial
      before you were actually sworn in. Those who participate in a trial
      must do so in accordance with established rules. That is true of the
      witnesses, the lawyers, and the Judge. Ladies and gentlemen of the
      jury, this is not particularly unusual your concern with inability to
      reach a unanimous verdict. But, there is precedence as to how a
      court and or counsel must address these instances, and that is the next
      aspect of this.

      {¶12} While we agree the trial court exchanged the standard

introductory sentence for a generalized statement about duties and

established rules, we do not necessarily agree that the difference in language

could only be interpreted by the jury as meaning that a jury verdict was

being required of them. Individual jurors may well have interpreted the

court’s language about “established rules” as hearkening back to previous

admonitions they had been given throughout the proceedings. For example,

during the trial, the judge had reminded the jurors that they were not to

discuss the case with family or friends, not to express opinions, not to read

the local newspaper, not to consider opening statements as evidence, and not

to expect they would be allowed to keep their cell phones during

deliberations. We conclude that this aspect of the altered Howard charge did
Adams App. No. 12CA936                                                          9


not cause confusion such that it foreclosed the possibility of a hung jury or

place undue pressure on minority members of the jury.

      2) On the deliberative process and interaction among jurors, the

      Howard charge reads:

             In a large proportion of cases, absolute certainty cannot be
      attained 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.

      By contrast, the trial court here stated:

             In a large proportion of cases, absolute certainty cannot be
      attained or expected. Although the verdict must reflect the verdict of
      each individual juror and not mere consent to the conclusion of other
      jurors, each question submitted to you should be examined with
      proper regard and deference to the opinions of other jurors. You
      should consider it desirable that the case be decided. You were
      selected in the same manner and from the same source as any future
      jury would be. There is no reason for this Court to believe that 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 clear evidence will be produced by either side. It is your duty
      to decide this case if you can honestly do so. You should listen to one
      another’s arguments with a disposition to be persuaded. Do not
Adams App. No. 12CA936                                                                                  10


        hesitate to reexamine your views and change your position if you are
        convinced that it is wrong. As there is disagreement, all jurors should
        reexamine their positions, given that a verdict has not been reached.

        {¶13} Appellant argues that the word and phrasal choices utilized by

the trial court in place of verbatim Howard language issued a stronger

directive implying that the jury “must reach a verdict.” We disagree. We

do not find that the words and phrases substituted by the trial judge varied

significantly from the verbatim Howard language. 2 We also do not find that

the substituted word choices or omission of the word “unanimous” in the

phrase “given that a verdict has not been reached,” created a coercive effect

on the jury. After review, we conclude that the language utilized by the trial

judge complied with Howard.

        3) Regarding specific instructions addressed to jurors for acquittal

        and jurors for conviction, the Howard charge states:

                 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


2
 For example, the trial court substituted “consent,” “other jurors,” “honestly,” and “wrong” for the words
“acquiescence, “ “your fellows,” “conscientiously,” and “erroneous.” According to Merriam Webster’s
Online Dictionary, http://www.meriam-webster.com/dictionary (accessed August 28, 2012), “consent” is a
synonym for “acquiescence.” “Honest” is a synonym for “conscientious,” and “wrong” is a synonym for
“erroneous.” Also, according to the online source, “fellow” is defined as “a member of a group having
common characteristics, “i.e. “other jurors.”
Adams App. No. 12CA936                                                         11


      should ask themselves whether they might not reasonably doubt the

      correctness of a judgment not concurred in by all other jurors.

      By contrast, the trial court here substituted language as follows:

             Jurors more in favor of plaintiff should consider whether their

      position is correct, 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 more in

      favor of defendant should ask themselves whether their position is

      correct considering that it is not shared by other jurors.

      {¶14} Appellant argues that the altered language shifted the jury’s

discussion from determining whether he was guilty beyond a reasonable

doubt to a discussion of which “side” was correct- plaintiff or defendant.

Although it is preferable to have left the language as to “reasonable doubt”

in the charge, we disagree that the trial court’s substitution in wording went

as far as to shift or eradicate the burden on the State to provide evidence

beyond a reasonable doubt on each element of each charge. The trial court

properly instructed the jury prior to their retiring for deliberations.

Specifically, the court instructed that Appellant was presumed innocent until

his guilt was established beyond a reasonable doubt. The trial court

instructed that the State must produce evidence beyond a reasonable doubt
Adams App. No. 12CA936                                                          12


as to every essential element of the offenses charged. The trial judge further

instructed that reasonable doubt is not mere possible doubt. The substance of

the section of which Appellant complains, despite changing the language to

“more in favor of plaintiff” and “more in favor of defendant,” continues to

focus on the fact that all jurors, those for acquittal and those for conviction,

should reconsider their positions. Again, the trial court’s changes in

language did not place undue pressure or coercion on the minority jurors but

asked all jurors to reconsider their positions.

      {¶15} Finally, Appellant argues that the trial court, after issuing the

Howard charge a second time, added a further instruction over defense’s

objection, as follows:

      “Your initial conduct upon re-entering the jury room is a matter of
      importance. It is not wise to immediately express a determination to
      insist upon a certain verdict because if your sense of pride is aroused
      you may hesitate to change your position even if you later decide that
      you are wrong. Consult with one another, consider each other’s views
      and deliberate with the objective of reaching an agreement if you can
      do so without disturbing your individual judgment. Do not hesitate to
      change an opinion if convinced that it is wrong. However, you should
      not surrender honest opinions in order to be congenial or to reach a
      verdict solely because of the opinion of your fellow jurors.”

      {¶16} The essence of counsel’s objection was: (1) that the jury had

not requested further instruction and actually had the written instructions

with them to refer to if necessary; (2) that the instruction was not

appropriate; and, (3) that some of the language was similar to that in the
Adams App. No. 12CA936                                                        13


Howard charge and could be viewed as an attempt to persuade them to a

verdict one way or another. We are not persuaded that giving this standard

Ohio instruction a second time, OJI 207.33, regarding initial conduct upon

entering the jury room, was error or coerced a verdict. Albeit, repetitive, this

instruction encourages jurors to consult with each other and consider each

other’s views. Moreover, this instruction advised jurors not to surrender

their honest convictions in order to “get along” with the other jurors or reach

a verdict “solely” because of their opinions.

       {¶17} In summary, we do not find that the trial court’s modified

Howard charge or the further charge, OJI 207.33, complained of by

Appellant, “coerced” a unanimous verdict or created a coercive environment

for the minority jurors. We believe that although the Howard instruction

given here was not verbatim, it was adequate. OJI 207.33 was perhaps

superfluous, but not erroneous. Having found the trial court did not commit

plain error, we overrule Appellant’s first assignment of error and affirm the

judgment of the trial court.

      The Trial Court’s Inclusion of the Definition of “Knowingly”

      {¶18} Appellant was convicted of R.C. 2905.05(A)(1), gross sexual

imposition, which reads as follows:

 (A) No personal shall have sexual contact with another, not the spouse of
the offender; cause another, not the spouse of the offender, to have sexual
Adams App. No. 12CA936                                                        14


contact with the offender; or cause two or more other persons to have sexual
contact when any of the following applies:

(1) The offender purposely compels the other person, or one of the other

persons, to submit by force or threat of force.

      {¶19} Appellant also contends that the trial court committed plain

error by improperly instructing the jury on the definition of “knowingly.”

Appellant asserts this was inherently confusing because there was no clear

reason presented to the jury for the definition being provided. The trial court

gave the following instructions:

The term purpose. A person acts purposely when it is his or her specific
intention to cause a certain result or when the gist of the offense is a
prohibition against conduct of a certain nature regardless of what the
offender intends to accomplish thereby it is his specific intention to engage
in conduct of that nature.

Knowingly, a person acts knowingly regardless of his or her purpose when
he or she is aware that his or her conduct will probably cause a certain result,
or he or she is aware that his conduct will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such
circumstances probably exist. Since you cannot look into the mind of
another, knowledge is determined from all the facts and circumstances in
evidence.

      {¶20} “A criminal defendant has the right to expect that the trial court

will give complete jury instructions on all issues raised by the evidence.”

State v. Maine, 4th Dist. No. 04CA46, 2005 Ohio-3742, ¶11 (internal

citation omitted), citing State v. Willingford, 49 Ohio St.3d 247, 251, 551

N.E.2d 1279 (1990). When we review a trial court’s jury instructions, we
Adams App. No. 12CA936                                                            15


may not judge “‘a single instruction to a jury* * *in artificial isolation,” but

we must view it “‘in the context of the overall charge.” ‘State v. Madrigal,

87 Ohio St. 3d 378, 396, 721 N.E.2d 52 (quoting Cupp v. Naughten, 414

U.S. 141, 94 S. Ct. 396, 400 (1973). Thus, we must consider the jury

instructions “as a whole” and then determine whether the jury charge

probably misled the jury in a manner materially affecting the complaining

party’s substantial rights. See Becker v. Lake Cty. Mem. Hosp. West, 53

Ohio St. 3d 202, 208, 560 N.E. 2d 165 (1990).

      {¶21} As the court explained in State v. Hardy, 28 Ohio St. 2d 89, 92,

276 N.E.2d 247 (1971): “In determining the question of prejudicial error in

instructions to the jury, the charge must be taken as a whole, and the portion

that is claimed to be erroneous or incomplete must be considered in relation

to, and as it affects and is affected by the other parts of the charge. If from

the entire charge it appears that a correct statement of the law was given in

such a manner that the jury could not have been misled, no prejudicial error

results.”

      {¶22} We must not reverse a conviction due to error in the jury

instructions unless the error is so prejudicial that it may induce an erroneous

verdict. Maine ¶11. See Parma Heights v. Jaros, 69 Ohio App.3d 623, 630

591 N.E.2d 726 (1990).
Adams App. No. 12CA936                                                           16


      {¶23} The transcript reveals at the conclusion of trial, the trial court

discussed modifications to the proposed jury instructions with the prosecutor

and defense counsel. Defense counsel declined to voice any objection

whatsoever to the inclusion of “knowingly” in the jury instructions. Thus,

again, we review the trial court’s jury instructions under the plain error

standard.

       {¶24} The elements of the crime of which Appellant was convicted

do not include the term “knowingly.” “Knowingly” was defined for the

jury, pursuant to OJI 417.11and R.C. 2901.22(B). While inclusion of the

definition of “knowingly” may have been perceived odd or inexplicable to

the jury, we remain mindful that reviewing courts must consider jury

instructions in their entirety. State v. Delawder, 4th Dist. No. 10CA3344,

2012-Ohio-1923, at¶30. We are not convinced that the jury’s question

“Why are there two sexual imposition charges” is necessarily indicative of

confusion relating to the definition of “knowingly.”

      {¶25} A similar argument was made in State v. DePompei, 8th Dist.

No. 4638, 1984 WL 7191 (Feb.16, 1984), where Appellant was convicted on

four counts of trafficking in drugs and twenty-seven counts of illegally

processing drug prescriptions. One of the assigned errors on appeal was that

the trial court instructed the jury on the definitions of “knowingly” and
Adams App. No. 12CA936                                                                                17


“purposely” and the jury was misled into convicting Appellant for having

the less culpable mental state (knowingly) than that which was required

(intentionally). The appellate court disagreed, finding that the jury was

clearly instructed that, before it could find Appellant guilty, it must find that

the appellant “did intentionally make, utter or sell a false or forged

prescription.”

        {¶26} The transcript shows that “purposely” was defined to the jury,

using standard Ohio jury instructions. 3 The other definitions provided to the

jury, such as the “burden of proof,” “reasonable doubt,” “evidence,” and

“credibility” were also standard Ohio instructions.4 Specifically, as to the

elements of the crimes charged, the jury was instructed:

               The defendant is charged in count one with gross sexual
        imposition. Before you can find the defendant, Elmer E. Stephenson,
        guilty of gross sexual imposition you must find beyond a reasonable
        doubt that on or about May 21st, 2011 in Adams County, Ohio, that
        Elmer E. Stephenson did have sexual contact with Chasity Morrison,
        not the spouse of the said Elmer E. Stephenson, or cause Chasity
        Morrison, not the spouse of the said Elmer E. Stephenson to have
        sexual contact with the same Elmer E. Stephenson. The said Elmer E.
        Stephenson having purposely (emphasis added) compelled Chasity
        Morrison to submit by force or threat of force.




3
 “Purposely” was defined for the jury, pursuant to OJI R.C. 417.01 and R.C. 2901.22(A).
4
 “Burden of proof” was defined for the jury pursuant to OJI 405.05 and R.C. 2901.05(A). “Reasonable
doubt” was defined pursuant to OJI 405.07 and R.C. 2901.05(D). “Evidence” was defined pursuant to OJI
409.01, for direct and circumstantial evidence. “Credibility” was defined pursuant to OJI 409.05 and R.C.
2945.11.
Adams App. No. 12CA936                                                          18


      {¶27} The jury was instructed by verbatim language as to count two

of the indictment. Regarding count three, kidnapping, the trial court

instructed:

             The defendant is charged in count three with kidnapping.
      Before you can find the defendant Elmer E. Stephenson, guilty of
      kidnapping in violation of 2905.01(A)(4) you must find beyond a
      reasonable doubt that on or about May 21st, 2011 in Adams County,
      Ohio that Elmer E. Stephenson did by force, threat, or deception
      remove Chasity Morrison from the place where the other person was
      found or restrain the liberty of Chasity Morrison with purpose
      (emphasis added) to engage in sexual activity as defined in Section
      2907.01 of the Revised Code with the said Chasity Morrison against
      the victim’s will.

      {¶28} The jury’s confusion as to “why are there two sexual imposition

charges” could just as well relate to the fact that the two charges stemmed

from an incident which occurred on one date in early 2011. When reviewing

the complete jury instructions, although inclusion of the definition of

“knowingly” was unnecessary, it is clear that the trial court provided the jury

with adequate instructions. “Ordinarily, reversible error does not consist of

misstatements or ambiguities in only part of the instructions.” Delawder

at¶30, citing State v. Pettit, 4th Dist. No. 99CA429, 2000 WL 897993, (July

5, 2000), at ¶4.

       {¶29} In the context of review of the entire set of instructions given

to the jury, we do not believe the jury was misled or that prejudice occurred.

While Appellant argues the only evidence of sexual contact was from Ms.
Adams App. No. 12CA936                                                      19


Morrison and thus, he was not convicted by an “overwhelming” amount of

evidence, we note that the jury was in the best position to assess Ms.

Morrison’s credibility. Noling, ¶ 54. See State v. DeHass, 10 Ohio St. 2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Also, the State

provided two additional witnesses. We conclude no plain error occurred by

provision of the instruction “knowingly.” As such, we affirm the judgment

of the trial court and overrule Appellant’s second assignment of error.


                                                JUDGMENT AFFIRMED.
Adams App. No. 12CA936                                                                      20


                                JUDGMENT ENTRY
       It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Adams
County Common Pleas Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                               For the Court,

                                               BY: _________________________
                                                   Matthew W. McFarland
                                                   Presiding Judge



                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
