This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, and the briefs and arguments of counsel. We have sua sponte removed this appeal from our accelerated calendar.
On January 8, 1992, defendant-appellant, Tyrone Smith, was placed under arrest for possession of cocaine. On February 12, 1992, he was charged in a two-count indictment with aggravated trafficking in violation of R.C. 2925.03(A)(2) and drug abuse in violation of R.C. 2925.11, with a specification, as to each count, that Smith had previously been convicted of domestic violence in Hamilton County. On March 25, 1992, Smith's jury trial began and he was subsequently found guilty on the drug-abuse count and a mistrial was declared as to the aggravated trafficking count. He was sentenced as appears of record.
In this appeal from the drug-abuse conviction, Smith presents three assignments of error for review. Assignments one and three are rendered moot pursuant to App.R. 12(A)(1)(c) by our disposition of Smith's second assignment of error, which alleges that the trial court erred to his prejudice and abused its discretion by precharging the jury and then failing to completely instruct the jury at the completion of closing arguments. We sustain this assignment of error as explained below. *Page 482
Crim.R. 30(A) states, in pertinent part, that:
"At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies of such requests shall be furnished to all other parties at the time of making such requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, butthe court shall instruct the jury after the arguments arecompleted. The court need not reduce its instructions to writing." (Emphasis added.)
We hold that the above language creates a per se rule that the trial court must fully and completely instruct the jury verbally at the close of arguments as to the law to be applied to a case irrespective of whether written instructions accompany the jurors into their deliberations. The need for an oral recitation is reinforced by the rule's language that the instructions need not be put in writing. Our holding is supported by State v. Comen (1990), 50 Ohio St.3d 206,553 N.E.2d 640, wherein the Ohio Supreme Court held in the second paragraph of its syllabus:
"After arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder."
Over and above our reading of Crim.R. 30(A), we note that even if an oral charge were not required there is no copy of any written instructions in this record and no indication therein that the jury ever had any written instructions during the deliberations. The record reflects that the court merely stated the jury would have a written charge containing "facts or elements of the charge" during its deliberations. The lack of a copy of the written instructions within the record violates the substantial right of appellate review afforded to any person convicted of a crime in Ohio.
R.C. 2945.10(G) mandates that written instructions are to "remain on file with the papers of the case." Where an appeal is an integral part of a state's system for adjudicating guilt or innocence, the procedures for review must not violate a defendant's due process rights. Evitts v. Lucey (1985),469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821. In a criminal case the defendant's due process rights include, at the very least, a fair trial and a fair opportunity to defend against a state's accusations. Chambers v. Mississippi (1973), 410 U.S. 284, 302,93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 302. In order to review the merits of an appeal, a transcript of the trial proceedings is required. Evitts v. Lucey, supra, 469 U.S. at 393,105 S.Ct. at 834, 83 L.Ed.2d at 827, citing Griffin v. Illinois (1956),351 U.S. 12, 13-14, 76 S.Ct. 585, 588, 100 L.Ed. 891, 896-897.
In the case sub judice, because written jury instructions are not in the record, this court is foreclosed from comparing whatever written instructions the jury *Page 483 may have received with the verbal charge given at the beginning of the trial. Such a limitation on this court's review is no different from the prejudicial effect resulting from a trial court's failure to preserve for the record statements ruled uponin camera with the defendant's request for discovery under Crim.R. 16(B)(1)(g). State v. Billups (1990), 68 Ohio App.3d 248,588 N.E.2d 208. Failure to include the written instructions pursuant to R.C. 2945.10(G) deprived Smith of due process because it impaired an effective first appeal as of right guaranteed by Section 3, Article IV of the Ohio Constitution and implemented by R.C. 2953.02. Consequently, we sustain Smith's second assignment of error.
Further, we note that our recent decision in State v. Owens (Jan. 13, 1993), Hamilton App. Nos. C-920134 and C-920135, unreported, 1993 WL 5183, appeal allowed in (1993), 66 Ohio St.3d 1500, 613 N.E.2d 646, is not in conflict with our holding on the second assignment of error in this case. Owens is not controlling here because we are convinced, on the basis of what is shown in this record, that the error resulting from the trial court's failure to comply with Crim.R. 30 did give rise to prejudice.
The judgment of the trial court is reversed on the strength of Smith's second assignment of error, and this cause is remanded for a new trial.
Judgment reversedand cause remanded.
DOAN, P.J., and GORMAN, J., concur.
HILDEBRANDT, J., dissents.