[Cite as State v. Sales-Hilton, 2012-Ohio-5651.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                           C.A. No.      26351

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
LATAYA SALES-HILTON                                     COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 11 07 1765

                                  DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant,        Lataya Sales-Hilton   (“Hilton”), appeals   from   her

convictions in the Summit County Court of Common Pleas. This Court reverses.

                                                    I

        {¶2}     Hilton and Cameron Murray had been dating for approximately four years and

would often spend nights together. According to Murray, he arrived at their apartment one

morning in July to find Hilton cutting his clothing with scissors. Murray testified that Hilton was

angry with him because he had stayed out all night. The two argued, and Murray grabbed Hilton

in an effort to stop her from cutting his clothing and to remove her from the room. Hilton

attempted to push Murray away and the two wrestled, causing them to fall to the floor. During

this fight, Murray sustained cuts and puncture wounds to his chest, arm, back, and leg. Murray

said that he was not aware of his injuries until he went downstairs and a roommate told him that
                                                2


he was bleeding. After the roommate bandaged him, Murray left the house and called his mother

to come pick him up.

       {¶3}    When Murray’s mother arrived and saw his injuries, she called the police over his

objections. The police and the paramedics responded to the scene. Murray was uncooperative

and maintained that he did not want the police involved.

       {¶4}    Hilton was charged with (1) felonious assault in violation of R.C. 2903.11(A)(2),

a felony of the second degree, (2) domestic violence in violation of R.C. 2919.25(A), a

misdemeanor of the first degree, and (3) domestic violence in violation of R.C. 2919.25(C), a

misdemeanor of the fourth degree. The court issued a protection order prohibiting Hilton from

having any contact with Murray. According to Murray’s mother, she subsequently found Hilton

and Murray in bed together at her daughter’s house, and Hilton was charged with violating a

protection order in violation of R.C. 2919.27, a misdemeanor of the first degree.

Jury Empanelment

       {¶5}    The court conducted voir dire on Thursday, January 5, 2012. Several of the petit

jurors informed the court that they were available the next couple of days, but had schedule

conflicts with Monday.     The court inquired as to whether the case might carry over until

Monday, to which the prosecutor responded, “for deliberations, possibly.” The court then

responded with promises that the trial would not carry over into Monday. Several prospective

jurors again expressed a concern about Monday, including Juror McBee who said, “I can’t miss

[any classes] at all. I’m in a doctoral program * * *.” The court then said, “Well, you know

what we’re going to do, we’re going to finish this by tomorrow, there is no question.” Out of the

prospective jurors that had informed the court of a scheduling conflict with Monday morning,

McBee was the only one empaneled.
                                                   3


          {¶6}   After the jury selection was complete, the court informed the attorneys that they

could not be in the courthouse late on Friday, and therefore, they should try the case in an

expeditious manner. The court further informed the jury that, due to the judge’s personal

schedule, the proceedings would adjourn at 3:30 p.m. on Thursday and begin again at 9 a.m. on

Friday.

Jury Instructions & Removal

          {¶7}   The jury returned to the courtroom the following morning and the trial proceeded.

Prior to lunch, after all of the testimony had been heard, the court passed out copies of the jury

instructions to the members of the jury and asked that they follow along as the court read them

aloud. After reading the instructions, the court released the two alternate jurors. Sometime

thereafter, the court realized it had omitted reading one paragraph of the instructions. The court

proceeded to read this portion of the instructions to the jury, on the record, in the jury room.

          {¶8}   After several hours of deliberations, the jury sent a question to the court inquiring

what it should do if it could not reach a verdict on two of the counts. The court issued a Howard

charge and ordered the jury to continue deliberations. However, because of the late hour, the

court dismissed the jury for the weekend. Juror McBee then reminded the court that she could

not return to court on Monday. After a very brief exchange between the court and McBee,

McBee confirmed that she would not return on Monday. The court then replaced McBee with

the first alternate.

Deliberations of New Jury

          {¶9}   The following Monday, the 11 original jurors and first alternate returned to the

courtroom. The court asked the foreman if it was his opinion that he could begin deliberations

anew and gave the jury four new, blank verdict forms. After several hours, the jury submitted a
                                                 4


question to the court indicating that the jury was at an impasse on one of the four counts. Over

objections by the State and Hilton, the court issued Howard and Allen charges and accepted the

partial verdict.

         {¶10} The jury found Hilton guilty of felonious assault and violating a protection order

and not guilty of one domestic violence charge. The jury did not reach a verdict on the

remaining domestic violence charge, and the court granted the State’s motion to dismiss that

count. Hilton now appeals from her convictions and raises four assignments of error for our

review. To facilitate the analysis, we rearrange and consolidate some of the assignments of

error.

                                                 II

                                Assignment of Error Number One

         THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
         IMPROPERLY IMPANELING AN ALTERNATE JUROR AFTER THE JURY
         HAD BEGUN THEIR DELIBERATIONS AND REACHED A PARTIAL
         VERDICT, THEREBY DENYING APPELLANT HER CONSTITUTIONAL
         RIGHT TO A FAIR AND IMPARTIAL JURY DELIBERATION AND/OR
         JURY TRIAL IN VIOLATION OF THE U.S. CONSTITUTION AND THE
         OHIO CONSTITUTION.

         {¶11} In her first assignment of error, Hilton argues that she was denied her right to a

fair trial when the court replaced an original juror with an alternate juror after deliberations had

begun and a partial verdict had been reached.         Specifically, Hilton argues that the court’s

decision to replace the original juror was both contrary to law and an abuse of discretion because

“there was no ‘manifest necessity’ to replace the original juror.”

         {¶12} R.C. 2945.29 permits a court to replace a juror with an alternate “[i]f, before the

conclusion of the trial, [the original] juror becomes sick, or for other reason is unable to perform

his duty * * *.”     As of 2008, Crim.R. 24(G)(1) allows the court to replace a juror after
                                                 5


deliberations have begun. However, “[i]f an alternate replaces a juror after deliberations have

begun, the court must instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1).

       {¶13} “This Court reviews the trial court’s decision to remove a juror for an abuse of

discretion.” State v. Veal, 9th Dist. No. 26005, 2012-Ohio-3555, ¶ 32. An abuse of discretion

means that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). In addition to an abuse of discretion, Hilton must

show that she was prejudiced by the court’s action. “Absent a record showing that the court

abused [its] discretion which resulted in prejudice to the defense, the regularity of the

proceedings is presumed.” State v. Brown, 2d Dist. No. 24541, 2012-Ohio-1848, ¶ 46.

       {¶14} Late Friday afternoon, the jury submitted a question to the court asking “[w]hat

[they] should [] do if [they] [we]re ‘hung’ on two count[s].” The court provided a Howard

charge and decided to conclude deliberations for the day. The court asked the jury to decide

when they wanted to return on Monday morning. While several jurors expressed the desire to

continue deliberating in an effort to conclude the case that day, the court said that the courthouse

must be vacated no later than 5 p.m., and therefore, deliberations must be resumed on Monday.

Juror McBee then reminded the court that she could not return on Monday because her doctorate

program was scheduled to begin. The court had a brief discussion with the juror and confirmed

that she would not return to the courthouse on Monday. The court decided to replace Juror

McBee with the first alternate, and Hilton filed a written objection.

       {¶15} Hilton argues that the court erred in replacing McBee because there was no

“manifest necessity” to do so. Hilton fails to point us to any case law in which “manifest

necessity” is the standard by which the court must determine whether to replace a juror. See

State v. Hopkins, 27 Ohio App.3d 196, 198 (11th Dist.1985) (manifest necessity is required to
                                                 6


dismiss entire jury and declare mistrial, but is not the standard to replace one juror with an

alternate). The crux of Hilton’s argument is that the juror’s excuse for why she could not return

on Monday was insufficient to warrant a discharge of her duties. However, Hilton overlooks

Juror McBee’s clear refusal to return to court on Monday to continue deliberations. This left the

court with little choice but to replace McBee with an alternate juror. The court’s decision to

replace the juror was an attempt to resolve the case in the most efficient manner and cannot be

said to have been arbitrary, unreasonable, or unconscionable. See Blakemore, 5 Ohio St.3d at

219.

Beginning Deliberations Anew

       {¶16} “If an alternate replaces a juror after deliberations have begun, the court must

instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1). “The purpose of such

instruction is to negate any possibility of coercion or intimidation of the substitute juror.” State

v. Elersic, 11th Dist. Nos. 2000-L-062 & 2000-L-164, 2001 WL 1497192, *13, citing State v.

Miley, 77 Ohio App.3d 786, 791-793 (12th Dist.1991). Despite Hilton’s concession in her brief,

the transcript is clear that the court did not issue the required instruction. “Normally, this Court

would only consider issues that were raised on appeal; nonetheless, this Court does have

discretion to sua sponte notice plain error.” State v. McPherson, 9th Dist. No. 11CA0024-M,

2012-Ohio-859, ¶ 6.

       {¶17} On Friday afternoon, the original jury reached verdicts on two of the counts and

asked the court “[w]hat [they] should [] do if [they] [we]re ‘hung’ on two count[s].” The jury

did not indicate which charges were resolved or what their verdicts were. The court responded

with a Howard charge and ordered the jury to continue deliberations on Monday. After Juror

McBee said that she would not return on Monday, the court replaced her with an alternate juror.
                                                  7


One of the other jurors then asked the court if they would have to start deliberations all over, to

which the court responded, “Yes, start all over on * * * all four of the counts, that’s correct.”

       {¶18} On Monday morning, 11 of the original jurors plus the first alternate arrived in

court. The court verified that the alternate juror had not discussed the case with anyone and had

abided by the admonitions given, including not conducting any independent research. The court

then asked the foreperson: “is it your opinion that you can begin deliberations anew on these four

charges?” The foreman answered, “Yes.” This was the only time in which the trial court

addressed the issue of beginning deliberations anew in the presence of the alternate juror.

       {¶19} While the court did order Friday’s verdict forms to be shredded and did give the

jury four new verdict forms, it, at no point, instructed the jury, with the alternate juror present,

that it must begin deliberations anew. We decline to presume that the jury understood that it

must begin deliberations anew from the court’s question to the foreman about whether, in his

opinion, he could begin deliberations anew. Under the circumstances of this case, the possibility

of prejudice was so great that Hilton was effectively denied her right to a fair jury trial. The

court’s failure to issue the instruction that the jury must begin deliberations anew is reversible,

plain error. See Elersic at *13.

       {¶20} The court further erred in failing to read the complete jury instructions to the

alternate juror. Twelve jurors and two alternates were sworn in on Thursday morning, February

5, 2012. On Friday, the court read the instructions to the jury and then dismissed the alternate

jurors. Subsequently, the court realized it had skipped a portion of the jury instructions and went

to the jury room to read, on the record, the omitted language, which stated as follows:

       You may not discuss or consider the subject of punishment. In the event you find
       the Defendant guilty, the duty to determine the punishment is placed, by law,
       upon the [c]ourt.
                                                   8


The court did not read these instructions to the alternate juror on Monday when it replaced the

original juror. We do note, however, that the jurors were given printed copies of the complete

instructions, and that during voir dire the prosecutor had mentioned that the jurors were not to

consider the subject of punishment.

        {¶21} Because we reverse on the court’s failure to properly instruct the jury to begin

deliberations anew, we need not reach the issue of whether the court’s failure to read the entire

instructions to the alternate juror actually deprived Hilton of her constitutional right to a fair trial.

        {¶22} Hilton’s first assignment of error is overruled, but her convictions are reversed

because the court committed plain error in failing to instruct the jury to begin deliberations anew.

                                 Assignment of Error Number Four

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL
        RULE 29 MOTION FOR ACQUITTAL.

        {¶23} In her fourth assignment of error, Hilton argues that the court erred in denying her

Crim.R. 29 motion for acquittal because the State presented insufficient evidence to support her

convictions for felonious assault and violation of a protection order. We disagree.

        {¶24} Hilton’s fourth assignment of error is not rendered moot by our conclusion to

reverse the matter because of a trial error. The Ohio Supreme Court has “distinguish[ed]

between appellate court reversals based solely upon insufficiency of the evidence and those

based on ordinary ‘trial errors.’” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 18.

        The Double Jeopardy Clause of the Fifth Amendment to the United States
        Constitution and Section 10, Article I of the Ohio Constitution protect a criminal
        defendant from multiple prosecutions for a single offense. Accordingly,
        notwithstanding some procedural defect by the trial court warranting reversal, the
        state remains entitled to “one, and only one, full and fair opportunity” to
        prosecute the defendant in regard to a single offense.
                                                 9


State v. Vanni, 182 Ohio App.3d 505, 2009-Ohio-2295, ¶ 14 (9th Dist.), quoting Richardson v.

United States, 468 U.S. 317, 330 (1984). Therefore, the Double Jeopardy Clause does not

prevent a retrial of a case that was reversed based on trial error, provided the State presented

sufficient evidence to sustain a guilty verdict. Brewer at ¶ 17.

       {¶25} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be

viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

       {¶26} “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955).           This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, ¶ 4 (9th Dist.).

Felonious Assault

       {¶27} A person is guilty of felonious assault if he or she knowingly causes or attempts

to cause physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause

a certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B). A “‘[d]eadly
                                                10


weapon’ means any instrument, device, or thing capable of inflicting death * * *.” R.C.

2923.11(A).

       {¶28} Hilton does not make any argument that scissors fail to meet the definition of a

deadly weapon. See App.R. 16(A)(7). This Court has repeatedly held, “[i]f an argument exists

that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v.

Cardone, 9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Therefore, we limit our

review to the element of knowingly.

       {¶29} Officer Ronald Kennedy, an Akron Police Officer who responded to the scene,

testified that Hilton told him that she grabbed scissors to defend herself and that Murray ran into

the scissors several times. However, Officer Kennedy attested that Murray’s injuries “didn’t

appear to be * * * defensive wounds,” explaining that if Hilton was trying to defend herself, he

would have expected Murray’s wounds to be “in one specific area of the body, [] not up and

down one side.” Officer Kennedy further testified that he was surprised at how calm Hilton was

and that in his experience victims are usually more emotional.

       {¶30} Detective John Bell also spoke to Hilton at the scene. Hilton told Detective Bell

that she became very upset when Murray arrived home that morning. She had retrieved a pair of

scissors from a drawer in the hallway, returned to the room, and began cutting his clothing.

Murray had grabbed her in an effort to stop her from cutting his clothing, but she was able to pull

away. They argued for approximately 20 minutes and, at some point, she threw the scissors

causing the blades to break apart. Hilton said she picked up half of the broken scissors and the

two continued to argue. Murray grabbed Hilton again, trying to calm her down, and the two

struggled, wrestling to the floor. At some point thereafter, they realized Murray was bleeding
                                                11


and the fight stopped. Hilton told Detective Bell that Murray was pretty upset and could not

believe that she had stabbed him.

       {¶31} Heather Greathouse rented a room in the home in which the incident occurred.

Greathouse was downstairs with her mother when Murray arrived that morning. When she was

interviewed by the police, Greathouse said she saw Hilton cut Murray with the scissors.

However, at trial, Greathouse testified that she did not witness the incident, but instead remained

downstairs and was not aware of any trouble until Murray came downstairs bleeding.

Greathouse bandaged Murray’s wounds, and he left. When asked why her testimony was

inconsistent with her statements given to the police, she said that right after the incident she was

“shook[] up” and “just wanted [the police] to leave.”

       {¶32} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have found the essential elements of felonious assault were proven beyond a

reasonable doubt. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus. The only witnesses

to the incident were Murray, Hilton, and Greathouse. The statements made to the police and the

testimony at trial allow for the conclusion that Hilton picked up the broken scissors with the

intention of keeping Murray from removing her from the room. Moreover, Hilton was aware

that she was holding the broken scissors when she began wrestling with Murray, and Officer

Kennedy testified that Murray’s injuries were inconsistent with Hilton’s version that she was

trying to defend herself. The State was not required to prove that Hilton had the intention of

causing harm, it was merely required to prove that Hilton was aware that her conduct would

probably cause a certain result. Thus, the State presented sufficient evidence to support all of the

elements of felonious assault, and the court did not err in denying Hilton’s motion for acquittal

on this charge.
                                                 12


Violation of Protection Order

       {¶33} A person is guilty of violating a protection order if he or she “recklessly violate[s]

the terms of * * * a protection order issued * * * pursuant to [a charge of domestic violence] * *

*.” R.C. 2919.27(A)(1). “A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause a certain

result or is likely to be of a certain nature.” R.C. 2901.22(C).

       {¶34} The court issued a temporary criminal protection order, pursuant to R.C. 2919.26,

on July 5, 2011. Cassandra Murray, Cameron Murray’s mother, testified that she was in court

with her son when the court informed Hilton that the protection order was in effect. Cameron

Murray also testified that he was present when the protection order was put into effect and

understood that it prohibited Hilton from having any contact with him.

       {¶35} Mrs. Murray testified that on August 31, 2011, after the protection order had been

in place for nearly two months, she arrived at her daughter’s house and discovered Hilton and

Murray in bed together. Mrs. Murray called the police, but testified that Hilton left before they

arrived. Cameron Murray testified that Hilton was not there that morning and that his mother

called the police because the two of them were fighting.

       {¶36} Viewing the evidence in a light most favorable to the prosecution, a reasonable

juror could have concluded that Hilton was aware of the protection order and was with Murray

that August morning. Thus, the State presented sufficient evidence to support the conclusion that

Hilton had violated the protection order, and the court did not err in denying her motion for

acquittal. Accordingly, Hilton’s fourth assignment of error is overruled.
                                                13


                                Assignment of Error Number Two

       THE TRIAL COURT COMMITTED PLAIN ERROR IN THE HANDLING OF
       ITS JURY PROCEDURE, THEREBY DENYING APPELLANT HER
       CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY
       DELIBERATION AND/OR JURY TRIAL IN VIOLATION OF THE U.S.
       CONSTITUTION AND THE OHIO CONSTITUTION.

                               Assignment of Error Number Three

       THE TRIAL COURT’S VERDICT WAS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶37} Hilton’s second and third assignments of error are rendered moot by our

conclusion to reverse the matter because of a trial error. We, therefore, decline to address them.

See App.R. 12(A)(1)(c).


                                                III

       {¶38} Hilton’s convictions are reversed because the court failed to instruct the jury to

begin deliberations anew when replacing a juror after deliberations had begun. Hilton’s first and

fourth assignments of error are overruled, and her remaining assignments of error are moot. The

judgment of the Summit County Court of Common Pleas is reversed, and the cause is remanded

for further proceedings consistent with the foregoing opinion.


                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                14


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, J.
CARR, J.
CONCUR.


APPEARANCES:

JAMES K. REED, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
