[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
State v. Muetzel
Combined Opinion