[Cite as State v. Holland, 2012-Ohio-486.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2011 CA 00104
MARYANN HOLLAND

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No. 2011 TRC 00479


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 6, 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH MARTUCCIO                               ERICA PRUITT VOORHEES
CANTON LAW DIRECTOR                            ASSISTANT PUBLIC DEFENDER
TYRONE D. HAURITZ                              200 West Tuscarawas Street
CANTON CITY PROSECUTOR                         Suite 200
KATIE ERCHICK                                  Canton, Ohio 44702
ASSISTANT CITY PROSECUTOR
218 Cleveland Avenue SW
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2011 CA 00104                                                    2

Wise, J.

       {¶1}   Appellant Maryann Holland appeals her conviction for OVI and Failure to

Obey a Traffic Control Device following a jury trial in the Canton Municipal Court.

       {¶2}   Appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

       {¶3}   On January 20, 2011, at approximately 12:04 a.m., Trooper Louive of the

Ohio State Highway Patrol observed Appellant make an illegal left-hand turn onto the I-

77 northbound ramp from Tuscarawas Street in Canton, Ohio. (T. at 89). Trooper

Louive initiated a traffic stop and upon approaching Appellant's vehicle, he smelled an

overwhelming odor of an alcoholic beverage. (T. at 90-91). Trooper Louive further

observed that Appellant's eyes were red and glassy. (T. at 92). Appellant told Trooper

Louive that she was coming from Mallonn's Bar and that she was on her way to pick up

friends, to be their designated driver. (T. at 90). Appellant denied that she had been

drinking. (T. at 115).

       {¶4}   Based on his observations and interactions with Appellant, Trooper Louive

had Appellant exit her vehicle for further investigation. (T. at 91). Trooper Louive asked

Appellant to perform three Standardized Field Sobriety tests. (T. at 92). Appellant

performed poorly on all three tests. (T. at 94, 96-97). Based on Appellant’s performance

and Trooper Louive’s observations, Trooper Louive place Appellant under arrest for

OVl. (T. at 106). Trooper Louive read Appellant the BMV 2255, and Appellant refused to

submit to a chemical test. (T. at 111). Appellant stated she wasn't taking any chemical

test without her attorney present. (T. at 111). Appellant was previously convicted of OVI

on February 4, 2009. (T. at 84).
Stark County, Case No. 2011 CA 00104                                                      3


       {¶5}   On January 20, 2011, Appellant was cited with one count of Driving While

Under the Influence of Alcohol or Drugs (OVI), a misdemeanor of the first degree in

violation of R.C. §4511.19(A)(1)(a); Driving While Under the Influence of Alcohol or

Drugs, Refusal of Test, Prior Conviction, a misdemeanor of the first degree in violation

of R.C.§ 4511.19(A)(2); and Failure to Obey a Traffic Control Device, a minor

misdemeanor in violation of R.C. §4511.12.

       {¶6}   On April 28, 2011, a trial by jury was held in this matter. Appellant was

found guilty on all counts, and Counts One and Two were consolidated for sentencing

purposes.

       {¶7}   Appellant was sentenced to pay a $525 fine and court costs; to serve a

term of one hundred and eighty days (180) in jail, with all but sixty (60) suspended; thirty

(30) of the sixty (60) days were to be served in the Stark County Jail AOD Program and

the remaining thirty (30) days were to be served on Electronically Monitored House

Arrest; to have her operator's license suspended for a period of two (2) years; and to

have six (6) points assessed to her operator's license.

       {¶8}   Defendant-Appellant filed a timely Notice of Appeal on May 2, 2011.

Defendant-Appellant also filed a Motion to Stay execution of Sentence, which was

granted by the trial court on May 3, 2011.

       {¶9}   Appellant assigns the following errors for review:

                                  ASSIGNMENTS OF ERROR

       {¶10} “I.   THE    TRIAL     COURT      ERRED      IN   DENYING      DEFENDANT-

APPELLANT'S MOTION IN LIMINE REQUESTING THAT THE DEFENDANT-
Stark County, Case No. 2011 CA 00104                                                       4


APPELLANT'S PRIOR CONVICTION BE EXCLUDED OR THAT A SEPARATE

HEARING BE HELD.

       {¶11} “II.    THE   TRIAL    COURT         ERRED    IN   DENYING      DEFENDANT-

APPELLANT'S MOTION IN LIMINE TO ASK QUESTIONS IN VOIR DIRE ABOUT

PRIOR OVI CONVICTIONS.

       {¶12} “III.   THE   TRIAL    COURT         ERRED    IN   DENYING      DEFENDANT-

APPELLANT'S MOTION FOR MISTRIAL IN REGARD TO ALLOWING THE

PLAINTIFF-APPELLEE         TO   ASK     QUESTIONS         DURING    VOIR    DIRE    ABOUT

DEFENDANT-APPELLANT'S REFUSAL TO SUBMIT TO CHEMICAL TESTING AND

DENYING COUNSEL FOR DEFENDANT-APPELLANT THE OPPORTUNITY TO ASK

QUESTIONS ON THE SAME SUBJECT.

       {¶13} “IV.    THE   TRIAL     COURT        ERRED    IN   DENYING      DEFENDANT-

APPELLANT'S MOTION FOR MISTRIAL AFTER THE STATE IMPROPERLY

REFERRED TO DEFENDANT-APPELLANT'S RIGHT TO REMAIN SILENT.”

                                             I.

       {¶14} In her first assignment of error, Appellant claims that the trial court erred in

overruling her motion in limine as to admission of her prior conviction for OVI. We

disagree.

       {¶15} A motion in limine is a tentative, interlocutory, precautionary ruling by the

trial court reflecting its anticipatory treatment of an evidentiary issue. State v.

Grubb (1986), 28 Ohio St.3d 199, 200-201, 503 N.E.2d 142. The established rule in

Ohio is the grant or denial of a motion in limine is not a ruling on the evidence. Id. The

ruling is preliminary and thereby requires the parties to raise specific evidentiary
Stark County, Case No. 2011 CA 00104                                                      5


objections at trial in order to permit the trial court to consider the admissibility of the

evidence in its actual context. Id “At trial it is incumbent upon a defendant, who has

been temporarily restricted from introducing evidence by virtue of a motion in limine, to

seek the introduction of the evidence by proffer or otherwise in order to enable the court

to make a final determination as to its admissibility and to preserve any objection on the

record for purposes of appeal.” Id. at 203, 503 N.E.2d 142. Failure to proffer the

evidence waives the right to appeal the granting of the motion. Id.

       {¶16} The record herein reveals Appellant did, in fact, object at trial to the

testimony she sought to have excluded in her motion in limine. As such, the matter is

properly before this Court for review.

       {¶17} The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343.

Therefore, we will not disturb a trial court's evidentiary ruling unless we find said ruling

to be an abuse of discretion; i.e. unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404

N.E.2d 144.

       {¶18} In this case, Appellant was charged with violations of both R.C.

§4511.19(A)(1)(a) and §4511.19(A)(2).

       {¶19} A prior conviction within 20 years is an element of R.C. §4511.19(A)(2). In

State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993 , the Ohio Supreme Court stated:

       {¶20} “It is crucial to note that the refusal to consent to testing is not, itself, a

criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is operating a motor

vehicle while under the influence of drugs or alcohol. A person's refusal to take a
Stark County, Case No. 2011 CA 00104                                                     6


chemical test is simply an additional element that must be proven beyond a reasonable

doubt along with the person's previous DUI conviction to distinguish the offense from a

violation of R.C. 4511.19(A)(1)(a).”

       {¶21} We therefore find the trial court did not err in allowing the State to put on

evidence as to Appellant’s prior conviction, as such was an element of the offense for

which the State bears the burden of proof.

       {¶22} Appellant’s first assignment of error is overruled.

                                             II.

       {¶23} In Appellant’s second assignment of error, she argues that the trial court

erred in denying her motion in limine to ask questions in voir dire regarding prior

convictions. We disagree.

       {¶24} The trial judge has discretion over the scope, length, and manner of voir

dire. See State v. LaMar, 95 Ohio St .3d 181, 2002-Ohio-2128, 767 N.E.2d 166; State v.

Getsy, 84 Ohio St.3d 180, 190, 1998-Ohio-533, 702 N.E.2d 866. State v. Webb, 70

Ohio St.3d at 338, 638 N.E.2d at 1035,

       {¶25} Accordingly, we will not find prejudicial error in a trial court's decision to

conduct voir dire or how the voir dire is conducted unless Appellant can show “a clear

abuse of discretion.” State v. Cornwell, 86 Ohio St.3d 560, 565, 1999-Ohio-125, 715

N.E.2d 1144.

       {¶26} Upon review, we find that Appellant has failed to show how Appellant was

prejudiced in that Appellant’s prior conviction was an element of the offense for which

she was charged and the State still had the burden of proof at trial for this element.

       {¶27} Appellant’s second assignment of error is overruled.
Stark County, Case No. 2011 CA 00104                                                         7


                                           III., IV.

       {¶28} In Appellant’s third and fourth assignments of error, she argues that the

trial court erred in denying her motion for a mistrial. We disagree.

       {¶29} Specifically, Appellant claims that a mistrial should have been granted

because the trial court allowed the prosecution but not the defense to raise questions

during voir dire concerning refusal to submit to a chemical test and because the

prosecutor commented on Appellant’s right to remain silent.

       {¶30} “A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened * * *.” State v. Reynolds (1988), 49 Ohio App.3d 27,

33, 550 N.E.2d 490, 497. The granting of a mistrial is necessary only when a fair trial is

no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1,

9; State v. Treesh (2001), 90 Ohio St.3d 460, 480, 739 N.E.2d 749, 771. When

reviewed by the appellate court, we should examine the climate and conduct of the

entire trial, and reverse the trial court's decision as to whether to grant a mistrial only for

a gross abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602

N.E.2d 790, 793-794, citing State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d

768, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; State v.

Gardner (1998), 127 Ohio App.3d 538, 540-541, 713 N.E.2d 473, 475.

       {¶31} A review of the voir dire reveals that the trial court refused to allow either

the State or the defense to ask any further questions regarding refusal to take a breath

test after the prosecutor elicited a response of “guilty” from a juror after asking what the

jurors “would think of somebody who would refuse to take a breath test?” (T. at 40).
Stark County, Case No. 2011 CA 00104                                                     8


       {¶32} Again, the trial judge has discretion over the scope, length, and manner

of voir dire. See LaMar, supra. Here, after the initial question concerning the jurors’

general impression about refusals, the trial court closed this line of questioning. The

trial court did not allow either side to pursue this line of questioning.

       {¶33} As such, we do not find the trial court erred in denying Appellant’s motion

for a mistrial based on the trial court’s decision to not allow the defense to question the

jury regarding refusals.

       {¶34} Appellant also moved for a mistrial during the prosecutor’s rebuttal to his

closing argument wherein the prosecutor stated:

       {¶35} “If any of you leave here, and it's been a long day, and you go to the Rite

Aid and you're in the candy aisle and an employee comes up to you and says, “You just

took candy. I just saw you. You put it in your right pocket.” Are you going to say, “I need

to talk to my attorney?” No. You're going to say, “Look. There isn't anything in my right

pocket.” She (Appellant) hasn't been drinking allegedly. Why does she need to talk to

her attorney?” (T. at 152).

       {¶36} Upon objection by Appellant’s counsel, the trial court instructed the jury as

follows:

       {¶37} “Ladies and gentlemen, the court sustained an objection to an argument

the prosecutor was making with regard to an analogy of being in a candy store and

being confronted by an employee about possibly taking candy and then the prosecutor

indicated words to the effect of the person should then come forward and show

evidence that they did not take the candy. In a criminal case the defendant first of all,

has the right to remain silent, would not - at no point has to offer evidence. So the
Stark County, Case No. 2011 CA 00104                                                      9


court's sustained the objection and asks that you strike any consideration of that

analogy or the remarks from the record.” (T. at 154-155).

        {¶38} Assuming the prosecutor's comment was improper, the trial court promptly

sustained Appellant's objection. Further, the trial court gave the jury a curative

instruction telling them not to give any consideration to such remarks. Additionally, the

jury was later instructed that comments made by the attorneys during closing

arguments, are not evidence. The jury is presumed to have followed the court's

instructions. State v. Raglin (1998), 83 Ohio St.3d 253, 264.

        {¶39} Having reviewed the entire record, and given the trial court's actions and

instructions to the jury, we do not find that Appellant was denied a fair trial based on the

prosecutor's isolated comment. State v. Drummond, 111 Ohio St .3d 14, 2006-Ohio-

5084.

        {¶40} Further, we find that these statements were made in regard to the OVI

charge brought pursuant to R.C. §4511.19(A)(1)(a). Had Appellant only been charged

and convicted of R.C. 4511.19(A)(1)(a), we would find the prosecutor’s comments

herein to be more troublesome.        However, since Appellant was also charged and

convicted under R.C. 4511.19(A)(2), we find that Appellant has not suffered any

prejudice as a result of such statements.

        {¶41} Accordingly, the trial court did not abuse its discretion by refusing to grant

a mistrial.
Stark County, Case No. 2011 CA 00104                                            10


       {¶42} Appellant’s third and fourth assignments of error are overruled.

       {¶43} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is affirmed.



By: Wise, J.

Edwards, J., concurs separately.

Hoffman, P. J., concurs in part and dissents in part.




                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0109
Stark County, Case No. 2011 CA 00104                                                       11

Hoffman, P.J., concurring in part and dissenting in part

         (¶44) I concur in the majority’s analysis and disposition of Appellant’s first and

fourth assignments of error.1

         (¶45) I concur in the majority’s disposition of Appellant’s second assignment of

error. While Appellant’s assignment of error references her motion in limine, the thrust

of her argument is once having determined to deny her motion in limine, the trial court

erred in denying her the opportunity to question prospective jurors concerning prior

convictions during voir dire. Unlike the majority, I find to do so was error. However, I

concur because I believe the error, viewed singularly, was harmless.

         (¶46) I disagree with, and respectfully dissent from, the majority’s conclusion the

trial court did not err in closing questioning about refusals in voir dire. I find questioning

jurors about their opinions regarding “refusals” is a proper subject of voir dire. Once the

prosecutor elicited a response from a juror equating “guilty” with somebody who would

refuse to take a breath test, I believe Appellant was prejudiced from being unable to

elicit information from the then arguably “tainted” venire about whether they share a

similar preconceived conviction.

         (¶47) While I recognize it is difficult to demonstrate prejudice from errors

occurring during voir dire, I find the synergistic effect of the trial court’s errors limiting

questions concerning the impact of a prior OVI conviction and the impact of a “refusal”

sufficient to question the overall reliability of the verdict.

                                             _______________________________
                                             HON. WILLIAM B. HOFFMAN




1
    As to the fourth assignment of error, I do find the prosecutor’s comment was improper.
Stark County, Case No. 2011 CA 00104                                                     12


EDWARDS, J., CONCURRING OPINION

        {¶48} I concur with Judge Wise as to the disposition and part of the analysis of

this case.

        {¶49} I find that the trial court erred in denying appellant the opportunity to

question prospective jurors concerning prior convictions during voir dire and that the trial

court erred in closing questioning during voir dire about refusals to take the breathalyzer

test.

        {¶50} In spite of the above disagreements with Judge Wise, I do agree with him

as to the ultimate disposition of the case because I find the errors, viewed individually or

synergistically, to be harmless based on the evidence.




                       _______________________________________

                                     Judge Julie A. Edwards
Stark County, Case No. 2011 CA 00104                                          13


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MARYANN HOLLAND                            :
                                           :
       Defendant-Appellant                 :         Case No. 2011 CA 00104




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
