[Cite as State v. Muetzel, 2013-Ohio-1328.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                      Plaintiff-Appellee       :      Hon. William B. Hoffman, J.
                                               :      Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :      Case No. 12-COA-008
CANDACE MUETZEL                                :
                                               :
                                               :
                     Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Ashland Municipal Court,
                                                   Case No. 11-TR-C-6126


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            March 25, 2013



APPEARANCES:

For Appellant:                                        For Appellee:

CASSANDRA J. M. MAYER                                 RICHARD P. WOLFE II
234 Park Ave. West                                    ASHLAND CITY LAW DIRECTOR
Mansfield, OH 44902                                   1213 East Main St.
                                                      Ashland, OH 44805
[Cite as State v. Muetzel, 2013-Ohio-1328.]


Delaney, P.J.

        {¶1} Defendant-appellant Candace H. Muetzel appeals from the January 26,

2012 Nun Pro Tunc Judgment Entry Regarding Defendant’s Motion for Acquittal or to

Set Aside Verdict of the Ashland Municipal Court overruling her motion to have the

jury verdict set aside or “amended.” Appellee is the state of Ohio.

                                  FACTS AND PROCEDURAL HISTORY

        {¶2} Neither party references the facts underlying appellant’s conviction upon

one count of O.V.I, but we have reviewed the record of the extensive testimony in this

case and note briefly appellant was observed driving erratically in the evening hours of

August 31, 2011.          Officers described repeated “constant, consistent” left-of-center

violations.     Upon being pulled over, appellant had difficulty opening her window.

Officers described her red, bloodshot eyes, slurred speech, unsteadiness on her feet,

and an odor of an alcoholic beverage about her person. An open bottle of wine and

three-quarters empty, was found near the driver’s seat. Appellant exhibited a number

of clues on standardized field sobriety tests which led the investigating officer to

believe she was under the influence of alcohol. Also, admitted without objection, the

officer administered a portable breath test or “PBT” which also led him to believe

appellant was under the influence. Appellant refused a urine test.

        {¶3} Appellant has a prior conviction for O.V.I. in 2009.

        {¶4} Appellant was charged by uniform traffic ticket with violations of R.C.

4511.19(A)(1)(a) and 4511.19(A)(2).1 Appellant entered pleas of not guilty and the




1
 Appellant was also charged with open container, left-of-center, and seat belt violations,
which were tried to the court and are not at issue here.
Ashland County, Case No. 12-COA-008                                                    3


case proceeded to jury trial. At the close of all of the evidence, appellant moved for a

judgment of acquittal pursuant to Crim.R. 29 and the motion was overruled. The trial

court instructed the jury; neither party submitted any proposed or alternative jury

instructions for the trial court’s consideration, nor did either party object to the

instructions as given.

       {¶5} The jury retired to deliberate. At some point the panel indicated they had

a question, and the following discussion took place in open court with the jury present:

                    * * * *.

                    THE COURT:       * * * *.   Members of the Jury, we have

                    received your note here with a question and as I

                    understand the question is, Is Charge 2 dependant (sic) on

                    Charge 1, is that your question?

                    JUROR: Yes, Your Honor.

                    THE COURT: All right. The answer is, no, you may—each

                    of these charges is separate and distinct. The Defendant

                    may be found guilty or not guilty of one or both or none,

                    does that answer your question?

                    THEREUPON, there was no audible response.

                    THE COURT: Okay. You can resume your deliberations.

                    THEREUPON, there was a recess.

                    * * * *.

       {¶6} The jury found appellant not guilty of Count One and guilty of Count Two.

The jury verdict forms are signed by all eight jurors. Appellant did not request that the
Ashland County, Case No. 12-COA-008                                                     4


jury be polled; nor did she indicate to the trial court there was any reason not to move

forward with sentencing, which then took place in the presence of the jury.

       {¶7} The record indicates a bench conference took place outside the hearing

of the jury, apparently in reference to the start date of appellant’s jail time versus

whether she would appeal and be granted a stay.

       {¶8} The trial court thanked the jurors, released them from the admonition

against discussing the case, and dismissed them. The record notes, “[t]hereupon, the

trial concluded.”

       {¶9} The record then indicates defense counsel returned to the courtroom

after having spoken with the jurors, and advised the trial court “they had indicated that

they admit to their verdict to be to the OVI but refusal (sic).”       Defense counsel

indicated she would file an appropriate motion and subsequently filed a Motion for

Acquittal and/or Motion to Set Aside /Amend the Jury Verdict to Be In Conformity with

the Jury Deliberations, asserting the jury intended to find appellant not guilty of O.V.I.

and guilty of “refusing to submit to a chemical test.” The motion was accompanied by

identical affidavits from several jurors, drafted by defense counsel, stating, e.g., “the

intention of the jury verdict was a not guilty as to any charge related to operating a

motor vehicle while under the influence of alcohol and guilty only to the specification

that indicated that the defendant refused the chemical test offered to her by law

enforcement.”

       {¶10} A hearing was held on appellant’s motion, at which appellant called the

jurors as witnesses over appellee’s continuing objection.
Ashland County, Case No. 12-COA-008                                                       5


       {¶11} The trial court overruled appellant’s motion on January 25, 2012 and

issued a nunc pro tunc entry on January 26, from which appellant timely appeals.

       {¶12} Appellant raises one Assignment of Error:

       {¶13} “I. THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL AND DUE

PROCESS OF LAW PURSUANT TO THE CONSTITUTIONS OF THE UNITED

STATES AND OHIO AS A RESULT OF THE FOLLOWING: (A) THE TRIAL COURT

ERRED WHEN IT FAILED TO SET ASIDE THE JURY VERDICT AFTER IT WAS

CLEARLY DEMONSTRATED THAT THE JURY WAS CONFUSED BY THE

COMPLICATED JURY INSTRUCTIONS AND AS A RESULT, THE VERDICT FAILED

TO REFLECT THE TRUE AND ACTUAL INTENTION OF THE JURY.                            (B)   THE

TRIAL COURT FURTHER ERRED IN DENYING DEFENDANT’S MOTION TO SET

ASIDE THE JURY VERDICT BECAUSE THE TRIAL COURT’S DECISION WAS

PREMISED ON FLAWED FACTUAL FINDINGS SET FORTH IN THE JUDGMENT

ENTRY.”

                                             I.

       {¶14} Appellant argues she was deprived of a fair trial and due process of law

because the trial court refused to set aside the jury’s verdict. We disagree.

       {¶15} Appellant was charged with two counts of O.V.I. R.C. 4511.19 states in

pertinent part: “(A)(1) No person shall operate any vehicle, streetcar, or trackless

trolley within this state, if, at the time of the operation, any of the following apply: (a)

The person is under the influence of alcohol, a drug of abuse, or a combination of

them.” Section (2) of R.C. 4511.19(A) states:
Ashland County, Case No. 12-COA-008                                                      6


             No person who, within twenty years of the conduct described in

             division (A)(2)(a) of this section, previously has been convicted of

             or pleaded guilty to a violation of this division, division (A)(1) or (B)

             of this section, or a municipal OVI offense shall do both of the

             following:

             (a) Operate any vehicle, streetcar, or trackless trolley within this

             state while under the influence of alcohol, a drug of abuse, or a

             combination of them;

             (b) Subsequent to being arrested for operating the vehicle,

             streetcar, or trackless trolley as described in division (A)(2)(a) of

             this section, being asked by a law enforcement officer to submit to

             a chemical test or tests under section 4511.191 of the Revised

             Code, and being advised by the officer in accordance with section

             4511.192 of the Revised Code of the consequences of the

             person's refusal or submission to the test or tests, refuse to submit

             to the test or tests.

      {¶16} In order to obtain a conviction under R.C. 4522.19(A)(2), Appellee

needed to prove appellant was operating a vehicle while under the influence of alcohol

or drugs. Further, appellee needed to prove appellant refused tests and had a prior

OVI conviction within 20 years.       The evidence in this case supports appellant’s

conviction upon one count of R.C. 4511.19(A)(2).

      {¶17} We understand appellant attempts to make this a case about inaccurate

versus inconsistent jury verdicts, but she has effectively created a manifest weight
Ashland County, Case No. 12-COA-008                                                    7


argument, arguing essentially that the jury lost its way in reaching its verdict.

Appellant uses self-serving affidavits and questions jurors as witnesses to fashion an

argument the jury lost its way because appellant was found not guilty under R.C.

4511.19(A)(1)(a) yet guilty under R.C. 4511.19(A)(2). Appellant argues the jury

“intended” to find her not guilty of O.V.I. but guilty of “refusing the test” however, we

find this argument unavailing, not least of which because “refusing the test” is not an

offense.

       {¶18} As we stated succinctly in State v. Large, 5th Dist. No. 2006CA00359,

2007-Ohio-4685 (wherein we upheld a jury verdict finding a driver guilty of R.C.

4511.19(A)(2) but failing to find him guilty of impairment under R.C. 4511.19(A)(1)), “it

is not for us to speculate about why the jury decided as it did. ‘The several counts of

an indictment containing more than one count are not interdependent and an

inconsistency in a verdict does not arise out of inconsistent responses to different

counts, but only arises out of inconsistent responses to the same count. [Citation

omitted.] With few exceptions, once the jury has heard the evidence and the case has

been submitted, the litigants must accept the jurors' collective judgment. “Courts have

always resisted inquiring into a jury's thought processes.” [Citation omitted.] This

deference to the jury “brings to the criminal process, in addition to the collective

judgment of the community, an element of needed finality.” Id. at ¶ 22.

       {¶19} It is exactly such finality which is missing from a case such as the one

sub judice, if the jury’s decision is set aside.
Ashland County, Case No. 12-COA-008                                                    8


       {¶20} We also reject appellant’s juror affidavits and testimony altogether as

violations of Ohio’s aliunde rule codified in Evid.R. 606(B). State v. Mammone, 5th

Dist. No. 2012CA00012, 2012-Ohio-3546, ¶ 23-25.

       {¶21} Evid. R. 606 governs competency of a juror as a witness. Subsection (B)

states the following:

       {¶22} “(B) Inquiry into validity of verdict or indictment. Upon an inquiry into

the validity of a verdict or indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s deliberations or to the effect of

anything upon that or any other juror’s mind or emotions as influencing the juror to

assent or dissent from the verdict or indictment or concerning the juror’s mental

processes in connection therewith.      A juror may testify on the question whether

extraneous prejudicial information was improperly brought to the jury’s attention or

whether any outside influence was improperly brought to bear on any juror, only after

some outside evidence of that act or event has been presented. However a juror may

testify without the presentation of any outside evidence concerning any threat, any

bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A

juror’s affidavit or evidence of any statement by the juror concerning a matter about

which the juror would be precluded from testifying will not be received for these

purposes.”

       {¶23} For these reasons, we find the trial court properly overruled appellant’s

motion to set aside the jury verdict.
Ashland County, Case No. 12-COA-008                                                9


      {¶24} Appellant’s sole assignment of error is overruled and the judgment of the

Ashland County Municipal Court is affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER




PAD:kgb
[Cite as State v. Muetzel, 2013-Ohio-1328.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                    Plaintiff-Appellee         :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
CANDACE MUETZEL                                :
                                               :
                                               :   Case No. 12-COA-008
                     Defendant-Appellant       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland County Municipal Court is affirmed. Costs assessed to Appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. WILLIAM B. HOFFMAN



                                              HON. SHEILA G. FARMER
