        [Cite as State v. Jones, 2018-Ohio-4754.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO                                       :     APPEAL NO. C-170358
                                                        TRIAL NO. C-16CRB-17496B
       Plaintiff-Appellee,                          :

 vs.                                                :
                                                              O P I N I O N.
SEANTE JONES,                                       :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 30, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.


       {¶1}   Following a jury trial, defendant-appellant Seante Jones challenges his

conviction for complicity to theft, in violation of R.C. 2923.03. Jones had been

observed shoplifting men’s clothing from a Burlington Coat Factory store. He was

apprehended minutes after leaving the store with merchandise that he had not paid

for. Because the trial court’s error in permitting the state to exercise a peremptory

challenge out of sequence was not a structural error, mandating automatic reversal,

Jones was required to demonstrate prejudice flowing from that error. We conclude

that he was not prejudiced, and affirm.

                           I. Shoplifting Men’s Clothing

       {¶2}   On June 29, 2016, Steve Seiter, a loss prevention associate with over

16 years of experience, observed Jones enter a Burlington Coat Factory store with

another person. Seiter followed Jones and his companion, later identified as Ricardo

Scott, on the store’s numerous surveillance cameras for 15 to 20 minutes. Jones and

Scott went to the men’s clothing department. While Jones perused the merchandise,

Seiter noticed that he “continued to watch the people around him to see if they were

possibly paying attention to what he was doing.” Based upon his experience, Seiter

concluded that Jones was preparing to steal store merchandise. Jones then selected

a number of items of clothing, including a pair of black shorts and a red shirt. As

Scott left the store, Seiter observed Jones enter the fitting rooms with the clothing.

Jones remained in the fitting room for five minutes. When he left the fitting rooms,

Jones put some items back on a rack and then headed for the store’s exit at a fast

pace. He did not stop to pay for any merchandise.




                                          2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶3}   Seiter then checked to see if Jones had replaced all the items of

clothing, but he could not locate the black shorts and red shirt. Seiter alerted the

Springdale Police Department of the suspected theft.

       {¶4}   Based on Seiter’s description of the vehicle that Jones and Scott

departed in, Springdale Police Officer Joseph Robers stopped their vehicle within

minutes at a gas station located a quarter of a mile from the store. Officer Robers

ordered Jones and Scott from the vehicle. Officer Robers found that both Jones and

Scott had merchandise from the Burlington Coat Factory stuffed inside their pants.

Additional store merchandise was found in the vehicle, including the black shorts

and red shirt that Jones had taken into the fitting room.

       {¶5}   Seiter arrived at the gas station and identified Jones and Scott as the

two persons that he had watched at the store. He identified the merchandise as

belonging to Burlington Coat Factory, including the black shorts and red shirt, each

of which still had sales tags attached. Neither item had been paid for.

       {¶6}   Jones was charged by complaint with the theft of “various clothing

items and a watch” from Burlington Coat Factory, in violation of R.C. 2913.02. Jones

exercised his right to a jury trial. During the selection of the jury, and over Jones’

objection, the trial court permitted the state to exercise its third and final peremptory

challenge “out of sequence,” after the state had waived that challenge, and after the

selection of alternate jurors was already under way. Jones also filed a motion for a

mistrial on the basis of the flawed jury selection. After offering an explanation for its

actions, the trial court denied the motion and the case proceeded to trial.

       {¶7}   At trial, Seiter and Officer Robers testified on behalf of the state.

Jones testified in his own defense and stated that he had paid Scott to drive him to a

mall but that Scott had insisted that the two stop at the Burlington Coat Factory first.

He claimed to have accompanied Scott into the store, looked at clothing for about




                                           3
                     OHIO FIRST DISTRICT COURT OF APPEALS



five minutes, and then left the store to wait for Scott. Jones stated that Scott had

pulled stolen clothing items out of his pants once he returned to the vehicle.

       {¶8}   Jones testified that when the two were stopped by Officer Robers,

there “[w]asn’t anything found on me. Everything was found in the car. I’m not even

denying that it was stolen items in the car. Yes, because my dude did go in there and

steal. * * * [T]here was items found in the car. * * * I’m not going to deny that fact at

all.” Jones also admitted into evidence a video recording of some of the events that

Seiter had captured on the day of the theft. Seiter had admitted at trial that he had

failed to record most of the events that he described at trial. The admitted video

recording showed Jones and Scott’s long stay in the men’s clothing department but

did not show Jones taking any merchandise.

       {¶9}   At the conclusion of the trial, the state requested a complicity

instruction, under R.C. 2923.03, alleging that Jones had acted not only as a principal

but also as an aider and abettor in the theft offense charged in the complaint. The

trial court gave the instruction over Jones’ objection. The jury returned a not-guilty

verdict on the theft offense, but it found Jones guilty of complicity to theft. The trial

court entered judgment on the verdict and imposed a jail sentence of 180 days, with

177 days suspended. It also imposed a $200 fine, court costs, and a six-month period

of community control.

       {¶10} Jones appealed raising three assignments of error.

                           II. Peremptory-Challenge Issue

       {¶11} For clarity, we will address Jones’ assignments of error in temporal
order. In his third assignment of error, Jones asserts that the trial court erred in

allowing the state to use its third peremptory challenge “out of sequence,” after it had

previously waived the challenge. He further argues that he was not required to

demonstrate actual prejudice flowing from that error to overturn his conviction. He

urges us to follow the automatic-reversal rule enunciated by the Tenth Appellate



                                           4
                      OHIO FIRST DISTRICT COURT OF APPEALS



District in 1998, when it held that “as a matter of law, [a] defendant [is] not required

to make a showing of actual prejudice where the state is granted an ‘extra’

peremptory challenge.” State v. Holloway, 129 Ohio App.3d 790, 798, 719 N.E.2d 70

(10th Dist.1998). The state argues that we apply our own precedent holding that

when a trial court errs in extending additional peremptory challenges to the state,

“such error should not be deemed of such prejudicial character as to require a

reversal of the judgment,” absent a showing of prejudice flowing from that error.

State v. Bohannon, 64 Ohio App. 431, 439, 28 N.E.2d 1010 (1st Dist.1940).

       {¶12} While permitting the state to exercise a peremptory challenge out of
sequence was error, it was not one of the very limited class of trial errors which are

not reviewable for harmless error under Crim.R. 52(A), and which mandate

automatic reversal.    Thus, to prevail, Jones must demonstrate actual prejudice

flowing from that error. But he cannot.

           a. Two-step review for error and prejudice under Crim.R. 52(A)

       {¶13} Crim.R. 52(A) governs this criminal appeal of a nonforfeited error, and
provides that “[a]ny error * * * which does not affect substantial rights shall be

disregarded.” A reviewing court must first determine whether there was an error—a

deviation from a legal rule. Second, the reviewing court must analyze the trial court

record to determine whether the error “affect[ed] substantial rights” of the

defendant, that is, whether the error was prejudicial and affected the outcome of the

trial court proceedings. See State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789

N.E.2d 222, ¶ 7. But there is “a very limited class” of errors which are not reviewable

for harmless error under Crim.R. 52(A). These errors, now described as “structural

errors,” mandate a finding of per se prejudice, and automatic reversal. See Fisher at

¶ 9.




                                           5
                      OHIO FIRST DISTRICT COURT OF APPEALS



                           b. Exercising peremptory challenges

       {¶14} The first step in our analysis requires us to identify the legal rules
governing the use of peremptory challenges in the trial court.             In a criminal

proceeding, the use of peremptory challenges allows both the prosecution and the

defense to secure a more fair and impartial jury by enabling them to remove jurors

whom they perceive as biased, even if the jurors are not subject to a challenge for

cause. “The right of peremptory challenge is not, of itself, a right to select, but a right

to reject, jurors.” United States v. Marchant & Colson, 12 Wheat 480, 482, 6 L.Ed.

700 (1827), quoted in Bohannon, 64 Ohio App. at 437, 28 N.E.2d 1010.

       {¶15} Challenges for cause permit the parties to reject jurors on narrowly
specified bases that must be demonstrated in the record and found by the trial court.

See Crim.R. 24(C). Peremptory challenges provide both a defendant and the state an

opportunity to dismiss potential jurors for any reason, except for an impermissible

basis such as race or gender, without inquiry and without the trial court’s approval.

See Crim.R. 24(D); see also State v. Reynolds, 80 Ohio St.3d 670, 675, 687 N.E.2d

1358 (1998).

       {¶16} To ensure that the parties are equally able to employ peremptory
challenges, Crim.R. 24 mandates that they receive the same number of peremptory

challenges. In this misdemeanor trial, Jones and the state were each entitled to three

peremptory challenges, plus one additional challenge to be used only against an

alternate juror. See Crim.R. 24(D) and (G).

       {¶17} Generally, after the number of jurors required at trial has been seated,
the parties begin exercising their peremptory challenges. Under Crim.R. 24(E), the

state begins the peremptory-challenge process, and then the parties alternate

exercising their remaining challenges. A party’s failure to exercise a challenge in

turn waives that party’s right to that challenge, in effect forcing a party to exercise

each challenge in turn or lose it. See Crim.R. 24(E); see also 2005 Staff Notes,



                                            6
                     OHIO FIRST DISTRICT COURT OF APPEALS



Crim.R. 24(E) (“[F]ailure of a party to exercise a given peremptory challenge waives

that challenge but does not waive any other peremptory challenges to which the

party may otherwise be entitled.”).

            c. Crim.R. 24 violations are not subject to automatic reversal

       {¶18} The next step in our inquiry is to determine whether violations of
Crim.R. 24 are subject to automatic reversal, or whether they must be scrutinized for

harmless error under Crim.R. 52(A).

       {¶19} A structural error is a constitutional defect that affects the framework
within which the trial proceeds, rather than simply being an error in the trial process

itself. (Emphasis added.) State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108

N.E.3d 1. As recent decisions make clear, an error is designated as “structural” not

because of the difficulty in demonstrating prejudice, but rather when the error

permeates a trial and necessarily renders the trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence. See Rivera v. Illinois, 556 U.S.

148, 160, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009); see also Fisher, 99 Ohio St.3d 127,

2003-Ohio-2761, 789 N.E.2d 222, at ¶ 9 (holding that the practice of allowing jurors

to question witnesses is not a constitutional error, and thus is not structural error).

       {¶20} The “very limited class” of structural errors that courts have identified
include denial of counsel of choice, denial of self-representation, denial of a public

trial, a defective reasonable-doubt instruction, racial discrimination in selection of

the grand jury, and a biased trial judge. See United States v. Davila, 569 U.S. 597,

611, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013); see also State v. Hill, 92 Ohio St.3d 191,

199, 749 N.E.2d 274 (2001).

       {¶21} In determining whether an alleged error is structural, the threshold
inquiry is whether the error involves the deprivation of a constitutional right. See

Fisher at ¶ 18; see also State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶ 24. “[T]he trial-error/structural-error distinction is irrelevant unless it



                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS



is first established that constitutional error has occurred.” See State v. Esparza, 74

Ohio St.3d 660, 662, 660 N.E.2d 1194 (1996).

       {¶22} But there is no federal or state constitutional requirement that
peremptory challenges be provided within a trial. See State v. Greer, 39 Ohio St.3d

236, 245, 530 N.E.2d 382 (1988); see also Rivera, 556 U.S. at 158-161, 129 S.Ct.

1446, 173 L.Ed.2d 320 (holding that if “a defendant is tried before a qualified jury

composed of individuals not challengeable for cause, the loss of a peremptory

challenge due to a state court’s good-faith error is not a matter of federal

constitutional concern”).

       {¶23} In noncapital criminal cases, the right to peremptory challenges exists
by virtue of Crim.R. 24, not by virtue of the federal or Ohio constitution. See Greer

at 246; see also Premier Therapy, LLC v. Childs, 2016-Ohio-7934, 75 N.E.3d 692, ¶

40 (7th Dist.). The number of challenges available to each party is controlled by

Crim.R. 24(D) and (G), and the order in which they may be used is controlled by

Crim.R. 24(E). Any error, or deviation from these legal rules, is subject to the error-

and-prejudice analysis under Crim.R. 52(A). See Greer at 246 (noting that a trial

court’s failure to properly control the use of peremptory challenges and to award the

state an additional challenge was a procedural, rather than a constitutional, defect);

see also State v. Jackson, 92 Ohio St.3d 436, 439, 751 N.E.2d 946 (2001) (holding

that a trial court’s error in permitting alternate jurors to remain during jury

deliberations, in violation of former Crim.R. 24(F), was not cause for automatic

reversal).

       {¶24} Thus we will not adopt the automatic-reversal remedy advanced in
Holloway.     That rule was announced without reference to a deprivation of

constitutional rights or to Crim.R. 52(A). See Columbus v. Hunt, 10th Dist. Franklin

No. 88AP-512, 1989 WL 29379, *3 (March 30, 1989), cited in Holloway, 129 Ohio

App.3d at 798, 719 N.E.2d 70.       The rule of Bohannon, requiring a showing of



                                          8
                      OHIO FIRST DISTRICT COURT OF APPEALS



prejudice and rejecting automatic reversal, remains a correct statement of current

federal and Ohio Supreme Court precedent regarding which errors are so

intrinsically harmful to a fair trial as to require automatic reversal.

         {¶25} Despite its age, the Bohannon decision reflects the modern trend of
courts revisiting and limiting their earlier, automatic-reversal precedent.        For

example, the Colorado Supreme Court has recently rejected its earlier automatic-

reversal case law and has held that “allowing a defendant fewer peremptory

challenges than * * * available to and exercised by the prosecution, does not, in and

of itself, amount to structural error.”     People v. Novotny, 320 P.3d 1194, ¶ 27

(Colo.2014); see United States v. Lindsey, 634 F.3d 541, 548-49 (9th Cir.2011)

(rejecting its prior automatic-reversal rule when the trial court errs in the number of

peremptory challenges permitted); State v. Rayfield, 369 S.C. 106, 114, 631 S.E.2d

244 (2006).

         {¶26} Given that a trial court’s error in controlling the use of peremptory
challenges available to a party is not a constitutional error, it cannot be structural

error.   Thus Jones can prevail only if the trial court erred and that error was

prejudicial and affected the outcome of the trial court proceedings. See Crim.R.

52(A).

                  d. Error for the state to challenge “out of sequence”

         {¶27} In this case, near the end of jury selection, the state and Jones had
each exercised two of their three peremptory challenges. Prospective juror Charron

was examined by the parties. The trial court then addressed the state.

                THE COURT: [W]ould you like to exercise the county’s third

          and final peremptory challenge?

                ASSISTANT PROSECUTING ATTORNEY:                 No, I would not,

          Your Honor.

                THE COURT: So you’re satisfied?


                                            9
                     OHIO FIRST DISTRICT COURT OF APPEALS



               ASSISTANT PROSECUTING ATTORNEY: Yes, Your Honor.

               THE COURT: [Defense counsel], would you like to exercise the

         defense’s third and final peremptory?

               DEFENSE COUNSEL: We would, Judge. At this time we

         would like to thank and excuse * * * Mr. Charron.

       {¶28} Thus the state waived its final challenge and Jones exercised his final
challenge on prospective juror Charron.

       {¶29} Next, prospective juror White was questioned at length by the state
and by the trial court. White had initially expressed concerns regarding police-

involved shootings in other parts of the nation. Under questioning, he ultimately

stated that he could set those issues aside, would listen to the evidence introduced in

this case, would keep an open mind until a verdict was reached, and would remain

fair and impartial to the defendant and to the state.

       {¶30} The assistant prosecuting attorney then stated that he had no further
questions for White, and passed the prospective juror for cause. He made no other

comment and did not attempt to exercise a peremptory challenge. The trial court

addressed Jones’ trial counsel.

               THE COURT: Do you want to inquire of Mr. White?

               DEFENSE COUNSEL: Judge, after hearing the prosecution’s

         questions and the Judge’s follow-up questions, I have no further

         questions. We are satisfied with the jury.

               THE COURT: So you --

               DEFENSE COUNSEL: Pass for cause.

       {¶31} The trial court then began the examination of the alternate jurors,
stating, “So let’s bring up Mr. Roland as the possible alternate. Come on up, sir,




                                           10
                       OHIO FIRST DISTRICT COURT OF APPEALS



please.” The state questioned prospective alternate juror Roland. At the conclusion

of the questioning, the court addressed the state.

                  THE COURT: All right. Do you pass for cause on [Roland]?

                  ASSISTANT PROSECUTING ATTORNEY: I do, Your Honor.

                  DEFENSE COUNSEL: I have no further questions, Judge.

         Pass for cause.

                  THE COURT: Would you like to – would the prosecution like

         to exercise their one and only peremptory with respect to the alternate

         juror?

                  ASSISTANT PROSECUTING ATTORNEY:              With respect to

         the alternate juror, no.

                  THE COURT: Do you want to exercise your one and only

         peremptory with respect to [the alternate juror]?

                  DEFENSE COUNSEL: No, Your Honor.

                  THE COURT: All right. Is the prosecution satisfied with the

         jury?

                  ASSISTANT PROSECUTING ATTORNEY: Yes, Your Honor.

                  THE COURT: Is the defense satisfied with the composition of

         the jury?

                  DEFENSE COUNSEL: We are, Judge.

       {¶32} After two additional alternate jurors had been questioned, the state
approached and asked to address the court in chambers or at sidebar. An off-the-

record, sidebar conference was held. The trial court then went on the record, but out

of hearing of the jury, explaining that the state now wished to exercise a peremptory

challenge against prospective juror White. The court noted that it had reviewed

some unidentified portion of the trial transcript, and that it would “correct the


                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



record.” Over Jones’ objection, the court then informed the jury that “I did not give

the prosecution their third and final peremptory challenge as to [prospective juror]

White,” and excused the prospective juror. We note that juror Roland replaced

White, remained on the jury, and signed the verdict forms.

       {¶33} Both in ruling on the state’s request and in ruling on Jones’
subsequent motion for mistrial, it is clear from the transcript of the proceedings that

trial court and the parties had focused their inquiry entirely on whether the state

could use “its third and final” peremptory challenge against prospective juror White.

No mention was made of the state’s waiver of its challenge as to prospective juror

Charron.

       {¶34} When the court denied Jones’ motion for mistrial, the trial court
explained that it had permitted the state to exercise its peremptory challenge of

White “out of sequence” in an attempt to correct its perceived failure to “offer” the

state its “final” challenge. Jones argued to the court that the state had waived its

final challenge to regular members of the jury when it remained silent and permitted

“Mr. White” to be seated. The court responded, “How did [the state] implicitly fail to

exercise [its challenge]? I didn’t offer it to them.” This statement was true enough

but ignored that fact that the court had previously made that precise invitation as to

prospective juror Charron.

       {¶35} But Crim.R. 24 makes no provision that a party’s exercise of a
peremptory challenge must be predicated on the trial court’s invitation to do so. The

right to exercise a challenge lies with a party and not the court. Here, the state did

not use its third and final challenge on prospective juror White at the conclusion of

his voir dire examination. Crim.R. 24(E) provides that the state’s failure to exercise

its peremptory challenge then constituted a waiver of that challenge.        The trial

court’s action in permitting the challenge “out of sequence” was a clear violation of

Crim.R. 24(D) and (E). See Holloway, 129 Ohio App.3d at 797, 719 N.E.2d 70.



                                          12
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶36} It is beyond cavil that the trial court erred in permitting the state to
exercise its third peremptory challenge after the state had waived that challenge,

after the selection of the alternate jurors was already under way, and after the court

had expressly asked the parties if they were satisfied with the jury.

                          e. Jones cannot demonstrate prejudice

       {¶37} This conclusion does not end our inquiry. Showing that an error
occurred is not enough. Jones also must demonstrate that the error affected the

outcome of the proceeding. On the state of this record, we conclude that he cannot.

       {¶38} In anticipation of our adoption of the automatic-reversal rule, on
appeal Jones has not advanced an argument demonstrating how he was prejudiced

by the trial court’s error. From our examination of the trial record, however, we note

that Jones argued there that permitting the state to remove prospective juror White

deprived him of “a potentially friendly juror.”

       {¶39} But the right to ensure that a particular juror remain on the panel is
not one secured by Crim.R. 24. The function of a peremptory challenge is to reject

potential jurors viewed as biased toward the party exercising the challenge. See

Bohannon, 64 Ohio App. at 437, 28 N.E.2d 1010.             Here, the state’s improper

challenge to prospective juror White resulted in prospective alternate juror Roland’s

taking White’s place on the panel. Jones listened to the state’s and the trial court’s

examination of Roland, asked no questions of him, passed him for cause, and did not

exercise his remaining Crim.R. 24(G) alternate peremptory challenge to exclude him

from the panel. Jones could hardly have viewed Roland as an unfriendly juror.

       {¶40} Where Jones had ample opportunity to examine the prospective juror
on voir dire, found no showing of any bias or lack of impartiality on his part

challengeable for cause, and elected not to use his peremptory challenge to remove

the prospective juror, we cannot say that he has demonstrated prejudice flowing

from the trial court’s error.



                                           13
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶41} Jones’ third assignment of error is overruled.

                           III. Jury Charge on Complicity

       {¶42} In his first assignment of error, Jones argues that the trial court erred
in instructing the jury on complicity over his objection. At trial, Jones maintained

solely that because the state had tried the case on the theory that he was the principal

offender of a single theft offense, the complicity instruction was not warranted. The

evidence of complicity was “so remote” that its inclusion would confuse the jury, and

would not support an instruction on complicity. On appeal, however, he now argues

that since the complaint did not charge him “with respect to the theft offense

committed by [Scott],” the trial court erred in charging the jury that Jones could be

found to be an aider and abettor.

       {¶43} A person who violates R.C. 2923.03(A) by aiding and abetting another
in committing an offense “is guilty of complicity in the commission of an offense, and

shall be prosecuted and punished as if he were a principal offender. A charge of

complicity may be stated in terms of this section, or in terms of the principal

offense.” R.C. 2923.03(F). Thus, if the evidence permits, a defendant is deemed to be

on notice that he can be convicted as a principal offender or as an accomplice under

R.C. 2923.03(F). See State v. Harrington, 1st Dist. Hamilton Nos. C-080547 and C-

080548, 2009-Ohio-5576, ¶ 12. And where the state presents evidence that the

defendant acted in concert with another person to commit a crime, a jury instruction

on complicity is proper. See State v. Smith, 1st Dist. Hamilton Nos. C-080712 and C-

090505, 2009-Ohio-6932, ¶ 33. A trial court’s decision to grant a requested jury

instruction is reviewed under an abuse-of-discretion standard. See State v. Bush, 1st

Dist. Hamilton No. C-090291, 2010-Ohio-2874, ¶ 13, citing State v. Wolons, 44 Ohio

St.3d 64, 68, 541 N.E.2d 443 (1989).

       {¶44} In this case, the trial court did not abuse its discretion in providing an
instruction on complicity. The complaint initiating the prosecution alleged that



                                          14
                     OHIO FIRST DISTRICT COURT OF APPEALS



Jones had taken “various clothing items and a watch” from Burlington Coat Factory.

The evidence presented at trial demonstrated that Jones had acted in concert, as an

aider and abettor, with Scott in committing the theft of clothing items. Jones was

observed entering the store with Scott. Both went to the men’s clothing department

and selected clothing. Jones watched nearby persons to see if they were being

observed. The loss prevention associate observed the two and concluded that both

Scott and Jones had concealed store property on their persons. Jones exited from

the store quickly and joined Scott in a vehicle. They drove away together, and were

apprehended together. Jones admitted that Scott had removed stolen merchandise

from his pants once in the vehicle.      Under these circumstances, the jury could

reasonably have concluded that Scott had been the principal offender and that Jones

had aided and abetted his efforts. On these facts, the instruction was warranted and

the trial court did not abuse its discretion in giving the instruction on complicity.

Jones’ first assignment of error is overruled.

       {¶45} Jones also argues on appeal that the trial court failed to instruct the
jury that it was required to acquit Jones of complicity if it found that the state failed

to prove the essential elements of the offense beyond a reasonable doubt. Jones did

not bring this matter to the trial court’s attention at a time when the alleged

error could have been corrected or avoided. Thus he had forfeited all but plain error

in regards to this matter. See Crim.R. 30(A); see also State v. Harris, 2017-Ohio-

5594, 92 N.E.3d 1283, ¶ 15 (1st Dist.).          Crim.R. 52(B) places the burden of

demonstrating plain error upon the defendant-appellant. See State v. Perry, 101

Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14.

       {¶46} On appeal, Jones has not presented a claim of plain error and does not
provide any reasoning in support of this position.         Jones bears the burden of

affirmatively setting forth an argument on appeal and pointing this court to

applicable, legal authority in support of that argument as well as to the relevant



                                           15
                     OHIO FIRST DISTRICT COURT OF APPEALS



portions of the record. See App.R. 12(A) and 16(A)(7); see also 1st Dist. Loc.R.

16(A)(3)(e); State v. Perez, 1st Dist. Hamilton No. C-040363, 2005-Ohio-1326, ¶ 21-

22. If an argument exists that can support Jones’ assignment of error, it is not this

court’s duty to root it out. See State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-

4066, 938 N.E.2d 1060, ¶ 30 (9th Dist.). An appeals court will not construct a claim

of plain error on a defendant’s behalf if the defendant fails to argue plain error on

appeal. See State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 46. In

any event, here, the trial court did instruct the jury that its verdict “must be not

guilty” on the complicity offense if it found that the state had failed to prove each

essential element of complicity “beyond reasonable doubt.”

       {¶47} The first assignment of error is overruled.

                      IV. Weight and Sufficiency Challenges

       {¶48} In his second assignment of error, Jones challenges the manifest
weight and sufficiency of the evidence adduced to support his conviction for

complicity.

       {¶49} Our review of the record fails to persuade us that the jury, sitting as the
trier of fact, clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.             See State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The jury was entitled to

reject Jones’ theory that he had merely accompanied Scott to the store, and had not

acted in concert with Scott to commit a theft of men’s clothing.

       {¶50} The state presented ample evidence, including the testimony of Seiter
that Jones had entered the store with Scott, had watched to see if they were being

observed, and had taken clothing without paying for it, and the testimony of Officer

Robers that Jones and Scott were apprehended together shortly after leaving the

store and that stolen clothing items were found with them. Jones’ own testimony

that Scott had removed stolen merchandise from his pants after leaving the store



                                          16
                     OHIO FIRST DISTRICT COURT OF APPEALS



also supported the state’s case. As the weight to be given the evidence and the

credibility of the witnesses were primarily for the trier of fact to determine, the jury,

in resolving conflicts in the testimony, particularly between Seiter’s and Jones’

descriptions of what Jones had done inside the store, could properly have found

Jones guilty of complicity, and thus did not lose its way. See State v. DeHass, 10

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

       {¶51} The record also reflects substantial, credible evidence from which to
reasonably conclude that the state had proved all elements of the charged crime

beyond a reasonable doubt, including that Jones had aided and abetted Scott in

committing a theft offense. See R.C. 2923.03; see also State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 36; Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The second assignment of error is overruled.



                                     V. Conclusion

       {¶52} Having overruled each of Jones’ assignments of error, we affirm the
judgment of the trial court.

                                                                     Judgment affirmed.



MYERS and MILLER, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                           17
