[Cite as State v. Tucker, 2019-Ohio-911.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY



 STATE OF OHIO,                                   :     CASE NO. CA2017-12-172

         Appellee,                                :            OPINION
                                                                3/18/2019
                                                  :
   - vs -
                                                  :

 WILLIAM R. TUCKER,                               :

         Appellant.                               :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2017-01-0028



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee

Michele Temmel, 6 South Second Street, #305, Hamilton, OH 45011, for appellant



        M. POWELL, J.

        {¶ 1} William Tucker appeals his convictions in the Butler County Court of Common

Pleas for aggravated arson and murder. For the reasons described below, this court affirms

Tucker's convictions.

        {¶ 2} This case stems from the death of firefighter Patrick Wolterman, who died in

the line of duty on December 28, 2015, while attempting to extinguish a fire at the home of

Tucker's uncle, codefendant Lester Parker. The state alleged that Parker arranged for
                                                                      Butler CA2017-12-172

Tucker to set fire to Parker's home while Parker was away, in exchange for oxycodone

tablets. Parker's motive was to collect insurance proceeds.

       {¶ 3} A Butler County grand jury indicted Tucker with two counts of aggravated

arson, violations of R.C. 2909.02(A)(1) and (A)(2), and one count of felony murder, a

violation of R.C. 2903.02(B). In the same indictment, the grand jury charged Parker with

identical counts.

       {¶ 4} The matter proceeded to a joint, 9-day, jury trial. The jurors found both men

guilty as charged. The court sentenced each to 15 years to life in prison. Tucker appeals,

raising five assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S

CONVICTIONS AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

       {¶ 7} Tucker argues that the state's evidence was legally insufficient to convict him

of the aggravated arson counts as the evidence against him was entirely circumstantial.

Tucker further argues that his convictions were against the weight of the evidence.

       {¶ 8} The concept of legal sufficiency of the evidence refers to whether the

conviction can be supported as a matter of law. State v. Everitt, 12th Dist. Warren No.

CA2002-07-070, 2003-Ohio-2554, ¶ 10. In reviewing the sufficiency of the evidence, an

appellate court must examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

The relevant inquiry is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact would have found all the essential elements of the

crime proven beyond a reasonable doubt. Id.

                                             -2-
                                                                        Butler CA2017-12-172

       {¶ 9} To determine whether a conviction is against the manifest weight of the

evidence, a reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the conflicts in the evidence, 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. State v. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.

An appellate court will overturn a conviction due to the manifest weight of the evidence only

in extraordinary circumstances when the evidence presented at trial weighs heavily in favor

of acquittal. Id. at ¶ 18. A finding that a conviction is supported by the manifest weight of

the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler

No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 10} The trial evidence revealed that Parker, who lived with his wife Bertha at 1310

Pater Avenue in Hamilton, Ohio, had debts exceeding $143,000. On the day of the fire,

approximately $60,000 of those debts were past due. Shortly before Christmas Eve 2015,

Parker began moving various items out of 1310 Pater Avenue. Items removed included

framed family photographs, decorative objects and mementos, and important documents.

On December 27, 2015, Parker and Bertha went to Las Vegas on a planned vacation.

       {¶ 11} Tucker, originally from Hamilton, Ohio, resided in Richmond, Kentucky at the

time of the fire. During the evening hours of December 27, 2015, Kim Brooks, one of

Tucker's girlfriends, requested that Courtney Basinger drive to Richmond to bring Tucker

back to Hamilton. Basinger understood that she was bringing Tucker to Hamilton so that

he could obtain oxycodone tablets. Basinger understood that she would be compensated

for transporting Tucker with gas money and oxycodone.

       {¶ 12} Basinger was accompanied by Brooks, Basinger's two children, and the

children's teenaged babysitter. Basinger met Tucker at a CVS Pharmacy in Richmond.

                                              -3-
                                                                    Butler CA2017-12-172

Tucker was carrying a gym bag. Upon their return to Hamilton, Basinger dropped off the

children and the babysitter and she, Tucker, and Brooks drove to the east side of Hamilton.

       {¶ 13} Tucker instructed Basinger to park on Grand Boulevard between Pater

Avenue and Allstatter Avenue. Basinger testified that Tucker exited the vehicle with the

gym bag and walked towards Pater Avenue. Tucker then turned onto Pater Avenue and

disappeared from her view as he continued up the street. Basinger estimated that Tucker

returned to the vehicle approximately 20 minutes after leaving. As he approached the

vehicle, he was breathing heavily, carrying the gym bag, a gas can, and a padlock.

Basinger's vehicle was confirmed to have been in the vicinity of 2400-2510 Grand

Boulevard on December 28, 2015 at 12:45 a.m. based upon a police cruiser license plate

reader report. Google GPS data taken from Basinger's cellular phone records indicated

that her phone was stationary between 12:41 a.m. and 12:52 a.m.

       {¶ 14} At 1:05 a.m. on December 28, 2015, Officer Brian Gleason of the Hamilton

Police Department was dispatched to 1310 Pater Avenue in reference to an intrusion alarm.

Upon arrival he discovered smoke coming from the home. He conducted a perimeter sweep

and noted that the rear cellar doors to the home were open. It was later determined that

the cellars doors had been secured by a hasp and padlock. Based on damage to the hasp,

detectives believed that it had been broken off with a pry tool.

       {¶ 15} The fire department responded at 1:15 a.m. Firefighter Wolterman entered

the home through the front door. By then, however, an arson fire set in the home's

basement had severely damaged the joists supporting the first floor. The floor collapsed

and Wolterman fell through to the basement and he perished from the effects of the fire.

       {¶ 16} In the ensuing investigation, Detective Webb of the Hamilton police

department travelled to Richmond to question Tucker about the fire. Tucker denied any

involvement and claimed that he was in Richmond when the fire occurred.

                                             -4-
                                                                      Butler CA2017-12-172

       {¶ 17} The evidence indicated that Tucker routinely used the cellular phones of

friends and family. Tucker also communicated via Facebook messenger.

       {¶ 18} Detectives obtained records for the cellular phones of Parker, Tucker's

brother Stacy, Tucker's girlfriend Linda Rose, a prepaid cellular phone Parker purchased

and activated while he was in Las Vegas and a pay phone in a Marathon gas station parking

lot located across from the Cove Motel in Hamilton.

       {¶ 19} Stacy testified that he and Parker rarely spoke to one another. However, on

December 20, 2015, eight days prior to the fire, records indicated a 27-minute call, initiated

by Parker to Stacy's cellular phone.

       {¶ 20} Although Linda Rose knew neither Parker nor his wife Bertha, a call was

placed from her cellular phone to Parker's cellular phone on December 27, 2015 at 1:38

p.m. The call lasted 27 seconds.

       {¶ 21} At 3:15 a.m., on December 28, 2015, Tucker sent Rose a Facebook message

that read, "Baby Doll. Done with the job. Got to get some rest and call you tomorrow."

       {¶ 22} During the afternoon of December 28, 2015, there were four calls between

Stacy's cellular phone and either Parker's cellular phone or Parker's prepaid Las Vegas

phone. An additional call occurred between Stacy's cellular phone and Parker's cellular

phone on December 29, 2015 at 11:22 a.m.

       {¶ 23} Tucker and Brooks stayed at the Cove Motel in Hamilton on December 29

and left on December 30, 2015. On December 30, 2015 there were seven phone calls

placed from either Parker's cellular phone or his Las Vegas prepaid phone to the pay phone

across the street from the Cove Motel.

       {¶ 24} James Parker (unrelated) dated Parker's daughter, Melissa Jones.             He

testified that in June 2015 he was helping Parker install siding on Parker's garage located

next to 1310 Pater Avenue. He commented to Parker about recent renovations to 1310

                                             -5-
                                                                        Butler CA2017-12-172

Pater Avenue. Parker told him that the renovations had occurred because of a fire that he

and his nephew had set for "insurance reasons."

       {¶ 25} At trial, Tucker testified and admitted that he lied to the detective who

questioned him about his whereabouts on the morning of the fire. Tucker admitted that

Basinger had transported him to the area of Pater Avenue where he briefly left the vehicle.

However, Tucker claimed that his purpose was not to set a fire but to obtain oxycodone

tablets from Melissa Jones. Tucker asserted that he had arranged to meet Melissa around

midnight on Allstatter Avenue where he purchased 30 oxycodone tablets from her and left.

       {¶ 26} Upon a thorough review of the record, this court concludes that the jurors did

not lose their way in finding Tucker guilty. The state presented substantial circumstantial

evidence establishing that Tucker and Parker conspired to commit arson and that Tucker

was the individual who set fire to Parker's home. Tucker was in communication with Parker

before and after the fire and admitted he was on the scene at the very moment the fire

started. Basinger testified that Tucker was carrying a gas can upon returning to the vehicle.

       {¶ 27} Both Tucker and Parker testified. Parker denied being involved in the fire and

claimed that the state's witnesses, including both of his daughters, were liars. Tucker's

defense case rested on the likelihood of jurors believing that he just happened to plan to

meet Parker's daughter a block away from her father's home at the precise time an arson

fire was committed there. The jury is in a better position than this court to weigh credibility.

This is not a case where the evidence weighs heavily against the conviction. This court's

determination that the greater weight of the evidence supports Tucker's conviction is

dispositive of the issues of the sufficiency of the evidence. Jones, 2013-Ohio-150 at ¶ 19.

This court overrules Tucker's first assignment of error.

       {¶ 28} Assignment of Error No. 2:

       {¶ 29} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE

                                              -6-
                                                                           Butler CA2017-12-172

IT FAILED TO GRANT DEFENDANT'S MOTION FOR RELIEF FROM PREJUDICIAL

JOINDER.

         {¶ 30} Tucker argues that the trial court plainly erred when it did not sever his joint

trial.   Notice of plain error is to be taken with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. Crim.R. 52(B); State

v. Lott, 51 Ohio St.3d 160, 164 (1990).

         {¶ 31} Crim.R. 8(B) allows for joinder of defendants in the same indictment. Joinder

of defendants and the avoidance of multiple trials is favored in the law. State v. Thomas,

61 Ohio St.2d 223, 225 (1980). Joinder conserves judicial and prosecutorial time, lessens

the considerable expense of multiple trials, diminishes inconvenience to witnesses, and

minimizes the possibility of incongruous results in successive trials before different juries.

Id. "[J]oinder of defendants is proper so long as all defendants participated in the same

series of transactions leading to the charges even though not all defendants participated in

every act. * * * Not all defendants need be charged in each count * * * nor would differing

levels of culpability among defendants necessarily justify severance." State v. Schiebel, 55

Ohio St.3d 71, 88-89 (1990).

         {¶ 32} Crim.R. 14 permits a trial court to sever a joint trial and grant separate trials if

joinder has a prejudicial effect on the accused. However, the accused bears the burden of

proving prejudice. State v. Coley, 93 Ohio St.3d 253, 259 (2001). "The test is 'whether a

joint trial is so manifestly prejudicial that the trial judge is required to exercise his or her

discretion in only one way — by severing the trial. * * * A defendant must show clear,

manifest and undue prejudice and violation of a substantive right resulting from failure to

sever.'" Schiebel at 89, quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989).

         {¶ 33} A defendant may establish prejudice sufficient to warrant severance "'when

evidence that the jury should not consider against a defendant and that would not be

                                                 -7-
                                                                      Butler CA2017-12-172

admissible if a defendant were tried alone is admitted against a codefendant.'" State v.

Walters, 10th Dist. Franklin No. 06AP-693, 2007-Ohio-5554, ¶ 25, quoting Zafiro v. United

States, 506 U.S. 534, 539, 113 S. Ct. 933 (1993). Defendants "are not entitled to severance

merely because they have a better chance of acquittal in separate trials." Zafiro at 540.

      {¶ 34} Tucker argues that substantial evidence that was only relevant to Parker's

charges could have erroneously and prejudicially implicated him in the conspiracy.

Specifically, Tucker points to the evidence of Parker's financial distress, Parker's removal

of items from the home before the fire, Parker's continued gambling in Las Vegas after the

fire, and other evidence circumstantially implicating Parker in the arson. Tucker argues that

because it was undisputed that Parker was in Las Vegas at the time of the fire then jurors

may have concluded that the Tucker must have set the fire simply because he was the only

other codefendant who was available to accomplish the task.

      {¶ 35} However, there is "no resulting prejudicial effect when the evidence of each

crime as alleged against each defendant is simple and distinct." State v. Wyche, 10th Dist.

Franklin No. No. 87AP-878, 1989 Ohio App. LEXIS 647, *9 (July 19, 1989). "In such cases,

the jury is capable of separating the proof required for each charge as to the individual

defendants." Id., citing State v. Roberts, 62 Ohio St.2d 170, 175 (1980).

      {¶ 36} The evidence related to Parker's motivation to commit arson and his

preparations for the arson are simple and distinct from the evidence related to Tucker's

involvement in the conspiracy and there is no indication in the record that the jurors would

have had any difficulty in separating the evidence as it related to each codefendant. And

because this was a conspiracy, much of the evidence inculpating Parker in the offense was

relevant and admissible against Tucker to establish the conspiracy.

      {¶ 37} At oral argument, appellate counsel specifically argued the inadmissibility and

resulting prejudice from James Parker's testimony. Parker testified that Parker told him that

                                             -8-
                                                                        Butler CA2017-12-172

he and an unidentified nephew had earlier set a fire for insurance reasons. This court

agrees that this testimony may not have been admissible in a stand-alone trial against

Tucker. However, this court does not find that the court plainly erred in failing to, sua sponte,

sever Tucker's trial following this testimony. As discussed in the prior assignment of error,

the jurors convicted Tucker on ample circumstantial evidence of his role in the arson. Given

the substantial evidence, this court cannot clearly find that jurors would have found Tucker

not guilty in a stand-alone trial that excluded this testimony.

       {¶ 38} In addition, the court properly instructed the jury on the rules concerning the

consideration of separate evidence in a joint trial and this court presumes that jurors follow

the trial court's admonitions. State v. Loza, 71 Ohio St.3d 61, 75 (1994). Tucker has

established neither error nor plain error. This court overrules Tucker's second assignment

of error.

       {¶ 39} Assignment of Error No. 3:

       {¶ 40} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN

IT ALLOWED THE STATE TO INTRODUCE DEMONSTRATIVE EVIDENCE.

       {¶ 41} Tucker contends that the trial court abused its discretion in allowing the

admission of a demonstrative videotape that depicted the state's theory of how the arsonist

used a pry tool to break into the basement of Parker's home.

       {¶ 42} At trial, Parker's daughter, Cheryl Sullivan, testified that she was at Parker's

home on December 27, 2015, helping Parker and Bertha prepare for their Las Vegas trip.

She recalled seeing that the cellar doors were closed and locked with a little "goldish" color

lock. However, when first responders arrived on scene, they found that the cellar doors

were open.

       {¶ 43} Detective Fishwick testified that in his inspection of the cellar doors he noted

that the base of the original fastening mechanism was still attached to the door. However,

                                               -9-
                                                                         Butler CA2017-12-172

it appeared to be missing an eyelet. Additionally, the hasp, i.e., the flat metal piece that fits

over the eyelet, which would then allow a padlock to secure the door, was missing.

Detectives searched the area and did not recover any of the missing hardware or the

padlock.

       {¶ 44} Detective Fishwick further testified that it appeared that the base exhibited

evidence of tool marks. Based on these observations, Detective Fishwick opined that the

hasp lock was removed with a pry tool, such as a pry bar, to break the lock and open the

cellar doors.

       {¶ 45} Detective Fishwick testified that the police subsequently removed the cellar

doors from the residence and kept them as evidence. Detectives then decided to attempt

to recreate the cellar door break-in. At a local hardware store, they purchased a pry bar

and a hasp lock, which consisted of a base, eyelet, and hasp. The base of the purchased

hasp lock appears similar, if not identical, to the original base on the cellar door.

       {¶ 46} The detectives then removed the original base and installed the new hasp

lock through the original bolt holes. They secured the lock with a padlock, and a detective

used the pry bar to quickly break the lock, which was recorded on video.

       {¶ 47} Over objection, the state was permitted to publish the 30-second video

demonstrating the state's theory on how the arsonist broke into 1310 Pater Avenue. Tucker

contends that the admission of the video was erroneous because that there was no

evidence indicating the presence of any pry tool or that the fastening mechanism or hasp

lock was substantially similar to what was originally on the cellar doors. This court reviews

the trial court's decision to admit or exclude under the abuse of discretion standard. State

v. Robb, 88 Ohio St.3d 59, 69 (2000). This court has held that "demonstrative evidence is

admissible only if (1) it is relevant, (2) it is substantially similar to the object or occurrence

that it is intended to represent, and (3) it does not consume undue time, confuse the issues,

                                              - 10 -
                                                                       Butler CA2017-12-172

or mislead the jury." State v. Hause, 12th Dist. Warren No. CA2008-05-063, 2009-Ohio-

548, ¶ 42.

       {¶ 48} The trial court did not abuse its discretion in admitting the videotape. The

videotape was relevant. One of the issues raised by the defense was whether Tucker had

sufficient time to travel from Basinger's vehicle to 1310 Pater Avenue, break in, set the fire,

and return to the vehicle. The video demonstrated how quickly a fastening mechanism of

the type that may have been on the cellar door could be removed with a small, portable

tool, such as a pry tool.

       {¶ 49} With respect to whether the purchased hasp lock was substantially similar,

the photograph of the original base hardware looks similar if not identical to the hardware

purchased by the police for the recreation. It is reasonable to assume that the missing hasp

and eyelet would be substantially similar to the replacement hardware.

       {¶ 50} With regard to the tool used in the recreation, the state's theory was that the

perpetrator of the arson used a pry tool, as opposed to a cutting tool, based on the presence

of abrasions on the base hardware and the manner in which it was damaged. This is a

reasonable assumption based upon the facts known to the police.

       {¶ 51} Finally, this court does not find that the demonstrative video would confuse

the issues or the mislead the jury. The testimony made clear that police did not have the

either the original hardware or the padlock and this piece of demonstrative evidence simply

explained the state's theory of how the arsonist entered the home, and the speed at which

such a break-in could be accomplished if it was planned. Even if the hardware and tool

used in the recreation did not exactly replicate how the arsonist entered the property, the

recreation was substantially similar to what may have occurred based on evidence in the

record. This court overrules Tucker's third assignment of error.

       {¶ 52} Assignment of Error No. 4:

                                             - 11 -
                                                                       Butler CA2017-12-172

       {¶ 53} THE TRIAL COURT ERRED WHEN IT SUSTAINED THE STATE'S

OBJECTION TO LINDA ROSE TESTIFYING AS TO THE MEANING OF A TEXT

MESSAGE.

       {¶ 54} Tucker argues that the court abused its discretion when it would not permit

Tucker's defense counsel to ask Linda Rose her opinion on the meaning of a Facebook

message she received from Tucker.

       {¶ 55} Prior to trial, the state moved in limine for a ruling to exclude testimony from

Linda Rose as to what "job" Tucker was referring to when he sent her the Facebook

message, at 3:17 a.m. on December 28, 2015, stating "Babydoll. Done with the job. Got

to get some rest and call you tomorrow. Love you." The state anticipated that Linda Rose

would testify that she believed Tucker was referring to a roofing job and argued that her

opinion would be entirely speculative as she was not with Tucker that morning. The court

granted the motion. At trial, during Rose's cross-examination, Tucker's attorney called for

a sidebar to proffer her question to Rose as to what Rose thought the Facebook message

meant. The court again excluded the testimony based on its speculative nature.

       {¶ 56} This court reviews the trial court's decision to admit or exclude evidence under

the abuse of discretion standard. Robb, 88 Ohio St.3d at 68. Evid.R. 701 provides that "[i]f

the witness is not testifying as an expert, the witness' testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness' testimony

or the determination of a fact in issue." The first requirement of Evid.R. 701 is a restatement

of the firsthand knowledge rule, Evid.R. 602, which requires that a witness not testify to any

matter "unless evidence is introduced sufficient to support a finding that he has personal

knowledge of the matter." Evid.R. 602; State v. Kehoe, 133 Ohio App.3d 591, 603 (12th

Dist.1999).

                                             - 12 -
                                                                                 Butler CA2017-12-172

        {¶ 57} The trial court did not abuse its discretion. Linda Rose had knowledge that

Tucker worked as a roofer and could have had knowledge that he sometimes worked at

night. However, Linda Rose was not with Tucker that night and her opinion as to what he

meant by "job" would have been entirely speculative and not based on her perception or

personal knowledge. Accordingly, her opinion would not meet the requirements of Evid.R.

701.1 This court overrules Tucker's fourth assignment of error.

        {¶ 58} Assignment of Error No. 5:

        {¶ 59} THE STATE OF OHIO ENGAGED IN PROSECUTORIAL MISCONDUCT AT

TRIAL.

        {¶ 60} Tucker argues that the state committed prosecutorial misconduct during

closing argument, which deprived him of a fair trial. To demonstrate that the state deprived

him of a fair trial, Tucker must establish that the prosecutor's remarks were improper and

prejudicially affected his substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-

Ohio-6207, ¶ 62. In making such a determination, the focus is upon the fairness of the trial,

not upon the culpability of the prosecutor. State v. Gray, 12th Dist. Butler No. CA2011-09-

176, 2012-Ohio-4769, ¶ 57. A finding of prosecutorial misconduct will not be grounds for

reversal unless the defendant can establish that he has been denied a fair trial because of

the prosecutor's actions. State v. Smith, 12th Dist. Warren No. CA2017-02-013, 2017-Ohio-

7540, ¶ 29.

        {¶ 61} Tucker argues that state committed misconduct when the prosecutor stated

"so don't be misled by statements of attorneys telling you otherwise." Tucker argues that

the prosecutor was implying that defense counsel had been deceitful. Tucker's counsel




1. Moreover, this court notes that Linda Rose's anticipated testimony that Tucker was referring to a roofing
job would be inconsistent with Tucker's testimony that the "job" he ostensibly completed was buying
oxycodone tablets from Melissa Jones to sell in Hamilton.
                                                   - 13 -
                                                                      Butler CA2017-12-172

objected and the trial court sustained the objection, instructing jurors to disregard the

statement. This court does not find that the comment deprived Tucker of a fair trial. As

discussed above, the jury convicted Tucker on substantial evidence of his guilt. Moreover,

this court presumes that jurors followed the trial court's instructions to disregard the

comment. Loza, 71 Ohio St.3d at 75.

      {¶ 62} Next, Tucker argues that the state committed misconduct when the

prosecutor encouraged the jury to engage in "experiments" with regard to the passage of

time. The prosecutor encouraged jurors to "take out your watches" and allow 27 seconds

to elapse, which was the length of the call between Linda Rose's cellular phone and Parker's

cellular phone on the day before the fire.           The prosecutor argued that this would

demonstrate that 27 seconds was sufficient time for Tucker and Parker to confirm that they

were proceeding with the arson plan.

      {¶ 63} Later, the state recommended that the jurors "take out a stopwatch and have

an 11-minute moment of silence," i.e., the time that Basinger's phone remained stationary

while she was parked on Grand Boulevard. Tucker objected, and the court indicated that it

did not want the prosecutor encouraging jurors to count the passage of time, off the record,

and during deliberations. Instead, the court permitted the prosecutor to make his point by

holding a five-minute moment of silence during closing argument.

      {¶ 64} Jurors are obligated to decide a case based only upon the evidence and

arguments presented during the trial. State v. Villarreal, 12th Dist. Butler No. CA2004-02-

035, 2005-Ohio-1924, ¶ 37, citing State v. Taylor, 73 Ohio App.3d 827, 831 (4th Dist.1991).

It is therefore misconduct for a juror to engage in any independent inquiry or

experimentation concerning the matter at trial. Taylor at 831. Juror misconduct is only

grounds for reversal if it results in prejudice to the defendant. Id., citing Armleder v.

Lieberman, 33 Ohio St. 77 (1877).

                                            - 14 -
                                                                     Butler CA2017-12-172

       {¶ 65} This court does not find that juror misconduct occurred or that the prosecutor

encouraged juror misconduct. Juror misconduct cases involving experimentation typically

involve a juror using extraneous tools, procedures, or methods to test a hypothesis, outside

of jury deliberations. See, e.g., State v. Doan, 1st Dist. Hamilton No. C-940330, 1995 Ohio

App. LEXIS 4395 (juror conducted lighting experiment by putting lipstick on her arm to

simulate a bruise and tried to see it in a darkened room); State v. Hubbard, 8th Dist.

Cuyahoga No. 92033, 2009-Ohio-5817 (juror used binoculars to determine how much she

could observe from 50 feet away).

       {¶ 66} Out-of-court experimentation by a juror is improper for various reasons,

including that the variables that might affect the outcome are not known or controlled by the

court or parties and could differ from the facts in evidence. However, the passage of time

is a constant and is also a common experience of everyday life. Therefore, the risks

inherent in jurors conducting experiments are not present when asking jurors to consider

the passage of time as it relates to the theory of the case. This court overrules Tucker's

fifth assignment of error.

       {¶ 67} Judgment affirmed.


       RINGLAND, P.J., and PIPER, J., concur.




                                            - 15 -
