State v. Oliver

[Cite as State v. Oliver, 2021-Ohio-606.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28774
:
v. : Trial Court Case No. 2018-CR-2905
:
DARRION OLIVER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 5th day of March, 2021.

...........

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite
1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............

DONOVAN, J.
 -2-

{¶ 1} Darrion Oliver appeals from the trial court’s judgment convicting him of two

counts of rape, with violent offender specifications. Oliver was sentenced to two

mandatory prison terms of ten years each on the rapes, to be served concurrently, to

three additional years on the repeat violent offender specifications, to be served

consecutively to the other sentences, and he was designated a Tier III sex offender.

{¶ 2} On August 2, 2018, Oliver was indicted on two counts of rape (by force or

threat or force) and one count of kidnapping (sexual activity), all with repeat violent

offender specifications (the “A” Indictment). Oliver pled not guilty. On August 31, 2018,

a “B” Indictment was issued with 14 additional counts and additional specifications.

{¶ 3} On October 10, 2018, Oliver filed a motion to suppress, which the court

subsequently overruled. On December 24, 2018, he filed a motion for relief from

prejudicial joinder, which requested that the court try the “A” and “B” indictments

separately. The court granted this motion and set the “A” indictment for trial.

{¶ 4} Oliver was tried in March 2019. The record reflects that all prospective

jurors were sworn in prior to the start of voir dire. After the prosecutor introduced

Detective Zachary Williams of the Dayton Police Department as the State’s

representative, one prospective juror, “Mr. K.”, indicated that he knew Det. Williams “in

passing” because the juror was retired from the Dayton police department.

{¶ 5} At the start of voir dire by the parties, the trial court indicated that only the

jurors “seated in the jury box and in the chairs inside the rail” should answer their

questions, and that those prospective jurors “seated in back of the rail [and] in the

spectator section” should not respond at that time. However, the court advised those

jurors who were not to respond immediately to “pay attention and listen carefully” so that
 -3-

if they were called upon, they would be in a position to respond without the parties and

the court having “to repeat all that ha[d] proceeded.”

{¶ 6} After voir dire concluded, the court recessed for jury selection. The court

advised the parties that, with respect to challenges for cause, all of the prospective jurors

would be “under consideration,” and that each side had four peremptory challenges. The

court further explained that there would be one alternate juror, for a total of 13 jurors to

be selected, and each side would have one peremptory challenge with respect to the

alternate juror.

{¶ 7} The record reflects that five prospective jurors (Juror Nos. 1, 3, 6, 14, and

20) were removed for cause. Thereafter, in alternating turns beginning with the State, the

parties exercised three peremptory challenges each. The following exchange then

occurred:

THE COURT: * * * State of Ohio has one more peremptory

challenge with respect to the 12 actual jurors. Do you wish to exercise it?

***

[THE PROSECUTOR]: Should the State pass and the Defendant

exercise their final one, putting the current alternate * * * into the 12, would

we still be able to voir dire that person at this point? So we would be able

to re-voir dire anybody that’s not in the first 23 regardless?

THE COURT: Yeah.

[THE PROSECUTOR]: We’ll pass our last.

THE COURT: Defense has one remaining peremptory challenge;

do you wish to exercise it?
 -4-

[DEFENSE COUNSEL]: If we exercise it, Your Honor, can I still ask

questions even if I don’t have any challenges left?

THE COURT: Can you - - yeah. Anybody that’s on there that we

haven’t voir dired is subject to being voir dired.

[DEFENSE COUNSEL]: * * * I just wanted to double check. I

would move to strike - -

THE COURT: Now, wait. I didn’t - - I guess I’m going to qualify

that. They can only then be challenged for cause. You’ve got no more

peremptories.

***

[DEFENSE COUNSEL]: It would only be a cause challenge. I

think everybody understands that, right?

[THE PROSECUTOR]: But we would have a peremptory on the

alternates, still?

THE COURT: Yeah, you still have your alternate.

***

THE COURT: But it’s related to - - we’re probably going to - - we

may have another person, such as [Mr. K.] * * * who would jump into that

alternate spot.

[DEFENSE COUNSEL]: * * * Understood. We would strike - - Mr.

[P.] [who] is now sitting at Number 7, I believe.

{¶ 8} After defense counsel exercised his fourth and final peremptory challenge to

the panel of 12, Ms. W. took position number 7. Ms. W. was thereafter excused for cause
 -5-

under Crim.R. 24(B)(13) by agreement of both parties. The court explained that Mr. K.

then became Juror Number 7, but subject to voir dire, and that the alternate spot remained

to be filled. The following exchange occurred with Mr. K:

[THE PROSECUTOR]: * * * [Mr. K.], based on your responses in

your questionnaire you gave me, which I have in front of me, I take it you’re

now a retired Dayton police officer?

MR. [K.]: That’s correct.

[THE PROSECUTOR]: * * * And you put some responses in here.

Do you mind if I ask you about those out loud, or would you like to talk to

him up at the bench?

MR. [K.]: It makes no difference.

***

[THE PROSECUTOR]: * * * And this response may be old, because

I think you’ve been summoned before, but you said you would not make a

good juror because of your law enforcement experience?

MR. [K.]: Well, partially.

[THE PROSECUTOR]: * * * Do I take that to mean that you could

not be fair and impartial to - -

MR. [K.]: No.

[THE PROSECUTOR]: - - sit here with the jury?

MR. [K]: That’s not what I meant.

[THE PROSECUTOR]: * * * What did you mean?

MR. [K.]: I apparently misunderstood the question.
 -6-

***

MR. [K]: I just thought it was asking if I had any prior experience.

***

MR. [K.]: I’ve been on a jury before.

[THE PROSECUTOR]: * * * And things get lost in translation;

that’s just why I’m asking, and this is kind of a unique perspective because

we have a little smaller pool to talk to now. Given your experience as a

police officer, you believe you could be fair and impartial to sit as a juror in

this case?

MR. [K.]: Sure.

[THE PROSECUTOR]: * * * And nothing that we’ve - - any questions

I was asking anybody earlier that you have responses for that you want to

talk about, such as sexual assault experience, or anything of that kind?

MR. [K.]: No.

***

THE COURT: Any challenge of Mr. [K.] for cause?

[THE PROSECUTOR]: The State doesn’t have any.

[DEFENSE COUNSEL]: I don’t think I have grounds to do it. He

says he’s going to be fair and impartial.

{¶ 9} At the conclusion of the trial, the court instructed the jurors that their first

function in the jury room would be to select a foreperson. The court further advised the

jury as follows:

* * * The person you select to preside over your deliberations does
 -7-

not have any greater power, nor does that person’s vote have any more

importance than others.

He or she serves the purpose of helping to conduct your

deliberations in an orderly manner and to give each of you the opportunity

to express your opinion. * * *

***

Consult with one another in the jury room with a view to reaching an

agreement, if you can do so without disturbing your individual judgment.

Each of you must decide this case for yourself. You should do so,

however, only after a discussion of the case with the other jurors. Do not

hesitate to change an opinion if convinced that it is wrong. However, you

should not surrender your considered opinion concerning the weight of the

evidence in order to be congenial or to reach a verdict solely because of the

opinions or opinion of other jurors.

{¶ 10} When the jury reached its verdicts, the court read the verdicts for each count

aloud, confirming with the foreperson that each one was read correctly. The court

indicated that it would announce its decision on the repeat violent offender specifications

at the upcoming scheduling conference on April 1, 2019. On that day, the court indicated

that it found Oliver guilty of the repeat violent offender specifications with respect to each

count.

{¶ 11} In his brief,1 Oliver asserts two assignments of error. His first assignment

1
We note that much of the text in Oliver’s 15-page brief is single-spaced. App.R. 19
requires double line spacing for briefs.
 -8-

of error is as follows:

THE TRIAL COURT COMMITTED PLAIN ERROR IN THE MANNER

THAT IT CONDUCTED JURY SELECTION IN THAT JURORS WERE

SEATED IN THE PANEL WHO WERE NOT SUBJECT TO VOIR DIRE

PRIOR TO THE PARTIES BEING REQUIRED TO EXERCISE

PEREMPTORY CHALLENGES.

{¶ 12} According to Oliver, due to the manner in which the jury selection process

was conducted, defense counsel was able to voir dire Mr. K. only when he became one

of the 12 members of the jury, and he “was not voir dired in such a way as counsel was

permitted to exercise a peremptory challenge on him.” Oliver asserts that, because of

Mr. K.’s background as a police officer and “his statement that he would not make a good

juror because of his law enforcement experience,” he “would have been a most obvious

target for the exercise of a peremptory challenge.” Oliver also asserts that, because Mr.

K. “was not subjected to voir dire” until after the defense’s peremptory challenges had

been exhausted, Mr. K. “was left on the jury without benefit of voir dire.” He further

contends that the “unfairness of the process was exacerbated by the fact that [Mr. K.]

ultimately became the foreperson for the jury.”2 Oliver contends that the jury selection

process “was not done properly and resulted in significant prejudice” to him. Further, he

contends that the error was plain error pursuant to Crim.R. 52(B).

2
In his brief, Oliver’s attorney indicated that he intended to put the fact that Mr. K. became
the jury foreperson into the record “pursuant to App.R. 9(E) when given the opportunity
to supplement the record.” Defense counsel moved to supplement the record with an
affidavit from Oliver, which stated that, when the verdict was announced, he became
aware that Mr. K. was the foreperson of the jury. We overruled the motion, since Oliver’s
affidavit was not before the trial court for consideration during the underlying proceedings.
See Decision and Entry, October 21, 2020.
 -9-

{¶ 13} Oliver further asserts that “reasonable examination would include the

opportunity to voir dire a prospective juror prior to the court requiring the parties to

exercise their peremptory challenges,” because failure to do so could result in the

placement of a juror on the jury without the benefit of voir dire prior to the exercise of

peremptory challenges. In other words, Oliver argues that “100% of the prospective

jurors should have been voir dired by counsel” before the court requiring counsel to

exercise peremptory challenges.

{¶ 14} We note that Oliver failed to object to the selection process in the trial court.

As we have noted:

It is well-settled that failure to object waives all but plain error. State

v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25

(2d Dist.), citing McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-

Ohio-5128. “Plain error exists ‘if the trial outcome would clearly have been

different, absent the alleged error in the trial court proceedings.’ ” Id., citing

State v. Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-Ohio-5399.

State v. Kessel, 2019-Ohio-1381, 133 N.E.3d 1086, ¶ 33 (2d Dist.).

{¶ 15} We conclude that Oliver has not demonstrated plain error or error of any

sort. The use of peremptory challenges began after five challenges for cause were

utilized; at that point, there were 12 jurors in the box, and 5 jurors from inside the front rail

were seated within the 12. These five had been subject to voir dire originally. As the

State points out, jury selection for a criminal trial is generally governed by Crim.R. 24 and

R.C. 2945.21 et seq. Crim.R. 24(B) provides:

Any person called as a prospective juror for the trial of any cause
 -10-

shall be examined under oath or upon affirmation as to the prospective

juror's qualifications. The court may permit the attorney for the defendant,

or the defendant if appearing pro se, and the attorney for the state to

conduct the examination of the prospective jurors or may itself conduct the

examination. In the latter event, the court shall permit the state and

defense to supplement the examination by further inquiry. Nothing in this

rule shall limit the court's discretion, with timely notice to the parties at

anytime prior to trial, to allow the examination of all prospective jurors in the

array or, in the alternative, to permit individual examination o[f] each

prospective juror seated on a panel, prior to any challenges for cause or

peremptory challenges.

{¶ 16} Crim.R. 24(C) governs the challenge of jurors for cause. See also R.C.

2313.17 (Examination of jurors; causes for challenge); R.C. 2945.25 (Causes of

challenging of jurors).

{¶ 17} Crim.R. 24(D) governs peremptory challenges; it states: “In addition to

challenges provided in division (C) of this rule, if there is one defendant, each party

peremptorily may challenge * * * four prospective jurors in felony cases other than capital

cases * * *.” “Peremptory challenges shall be exercised alternately, with the first

challenge exercised by the state. The failure of a party to exercise a peremptory

challenge constitutes a waiver of that challenge, but does not constitute a waiver of any

subsequent challenge.” Crim.R. 24(E). “Except by agreement, neither the state nor the

defendant shall be required to exercise any peremptory challenge until twelve jurors have

been passed for cause and are in the panel.” R.C. 2945.23.
 -11-

{¶ 18} Finally, Crim.R. 24 (G)(1) provides in part that each “party is entitled to one

peremptory challenge in addition to those otherwise allowed if one or two alternate jurors

are to be impaneled * * *.”

{¶ 19} The record reflects that, while counsel for the parties initially addressed their

questions to the prospective jurors seated in the jury box and in front of the rail (the first

23 jurors), all of the potential jurors, including Mr. K., were in the courtroom and heard the

initial voir dire. While the court advised the prospective jurors beyond the initial 23 not

to respond to questions, the court instructed them to “pay attention and listen carefully so

that if you are called upon, you will be in a position to respond without our having to repeat

all that has proceeded.”

{¶ 20} Five jurors were excused for cause prior to the use of any peremptory

challenges. Then the State, in alternating turns with Oliver, exercised three peremptory

challenges and passed on using the fourth peremptory challenge. Before Oliver

exercised his fourth and final peremptory challenge, the trial court advised the parties that

any juror “that’s on there that we haven’t voir dired is subject to being voir dired.” The

court further clarified that, in the event Oliver exhausted his peremptory challenges,

additional jurors could only be challenged for cause, because he would have no more

peremptory challenges. Oliver’s attorney indicated his understanding of this fact. Oliver

then exercised his final peremptory challenge on Mr. P. After all peremptory challenges

were completed, Ms. W. became Juror Number 7 but was then excused for cause, which

resulted in Mr. K. becoming Juror Number 7 and subject to voir dire. After the additional

voir dire of Mr. K., counsel for Oliver indicated that he had no grounds to challenge Mr. K.

for cause, because Mr. K. had said he could be fair and impartial.
 -12-

{¶ 21} Oliver was not denied the opportunity to exercise a peremptory challenge

as to Mr. K. When Mr. K. became a seated juror, Oliver had exhausted his peremptory

challenges. “Decisions on the exercise of peremptory challenges are a part of trial

strategy.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 264,

citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 99.

Oliver was aware of Mr. K.’s employment history prior to the commencement of voir dire

by the parties, since Mr. K. advised the court about his employment history before voir

dire commenced. Oliver asserts, “any competent defense counsel would have

immediately utilized a peremptory challenge on [Mr.K.] had they been given the

opportunity to do so.” However, Oliver could have requested the opportunity to voir dire

more jurors for cause, including Mr. K., before exercising his final preemptory challenge.

{¶ 22} Finally, regardless of whether or not Mr. K. was selected as the foreperson,

the trial court advised the jury that the foreperson “does not have any greater power, nor

does that person’s vote have any more importance than others.” The court advised the

jurors that they each must decide the case for themselves, and that “the foreperson will

see that your discussions are orderly and that each juror has the opportunity to discuss

the case and cast his or her vote. Otherwise, the authority of the foreperson is the same

as any other juror.” “ ‘A trial jury is presumed to follow the instructions given to it by the

judge.’ ” State v. Ferguson, 2d Dist. Clark No. 2010-CA-1, 2011-Ohio-6801, ¶ 42, quoting

State v. Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988). Since there is no

suggestion to the contrary, we presume the jury followed the court’s instructions. For the

foregoing reasons, neither error nor plain error is demonstrated, and Oliver’s first

assignment of error is overruled.
 -13-

{¶ 23} In his second assignment of error, Oliver asserts:

THE TRIAL COURT ERRED IN SENTENCING DEFENDANT ON

THE REPEAT VIOLENT OFFENDER (RVO) SPECIFICATIONS WITHOUT

ANNOUNCING A DECISION WITH RESPECT TO THOSE

SPECIFICATIONS AND WITHOUT ENTERING A VERDICT ON THOSE

SPECIFICATIONS.

{¶ 24} Oliver asserts that the record in this case does not include any finding by

the trial court that he was guilty of the repeat violent offender specifications, and thus that

sentencing him on those specifications constituted error.

{¶ 25} The trial court’s judgment entry of conviction stated in pertinent part:

The Defendant was * * * brought before the court on March 30, 2020 for

execution of the sentence, * * * HAVING BEEN FOUND GUILTY BY A

JURY TO the following offense(s) in the A Indictment in CT 1: RAPE (By

Force or Threat of Force)(F1), 2907.02(A)(2), with two (2) years Repeat

Violent Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149, CT 2:

RAPE (By Force or Threat of Force)(F1), with one (1) year Repeat

Violent Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149, and CT

3: KIDNAPPING (Sexual Activity)(F1), 2905.01(A)(4), Repeat Violent

Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149.

(Emphasis sic.) This language incorrectly suggests that the jury, rather than the trial court,

made the findings of guilt with respect to the RVO specifications.

{¶ 26} On September 18, 2020, after Oliver’s brief was filed, the State filed a

motion to supplement the record with a transcript of the scheduling conference that
 -14-

occurred on April 1, 2019, at which time the court announced its decision on the repeat

violent offender specifications to Oliver’s offenses. This Court sustained the motion.

{¶ 27} The State correctly points out that, in the course of the trial, outside of the

presence of the jury, Detective Williams testified that Oliver had previously been convicted

of three felony offenses in Montgomery C.P. No. 2005-CR-3889: one count of

endangering children, a felony of the second degree; one count of endangering children,

a felony of the third degree; and one count of involuntary manslaughter, a felony of the

first degree. The State correctly asserts that both the first- and second-degree felony

offenses constituted offenses of violence pursuant to R.C. 2901.01(A)(9).

{¶ 28} Further, while “a verdict for a jury trial must be in writing, there is no similar

requirement for a bench trial in a criminal case.” R.C. 2945.171 states that, “[i]n all

criminal cases the verdict of the jury shall be in writing and signed by each of the jurors

concurring therein.” However, a case tried to the bench only requires the court “to make

a general finding.” Crim.R. 23(C). The State asserts that, since “the trial court did in

fact find Oliver guilty of the RVO specification on the record, the trial court did not err in

sentencing Oliver on each of the two RVO specifications,” and that the trial court could

issue a nunc pro tunc entry to reflect its finding of guilt on the RVO specifications.

{¶ 29} In his reply brief, Oliver asserts that he was not, in fact, convicted of the

RVO specifications, because the trial court failed to comply with Crim.R. 32(C). Crim.R.

32(C) states: “A judgment of conviction shall set forth the fact of conviction and the

sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal.

A judgment is effective only when entered on the journal by the clerk.” Oliver argues that

the trial court did not sign the judgment with respect to the RVO specifications and the
 -15-

clerk did not enter it on the journal, so the judgment was not effective. In response to

the State’s argument that the error could be corrected through a nunc pro tunc entry,

Oliver points out that the trial court has issued no such entry in this case. Finally, Oliver

repeats his assertion that he was not properly sentenced on the repeat violent offender

specifications because he was not properly convicted of those specifications.

{¶ 30} Contrary to Oliver’s assertions, the record reflects that his judgment entry

of conviction was electronically signed by the court and journalized. R.C. 2941.149

provides: “The court shall determine the issue of whether an offender is a repeat violent

offender.” As set forth above, the judgment entry of conviction suggested that the jury

found him guilty not only of the offenses set forth in Counts 1-3, but also of the repeat

violent offender specifications, when in fact the court found him guilty of the specifications

at the April 1, 2019 scheduling conference, as required by R.C. 2941.149.

{¶ 31} As this Court has noted:

“Crim.R. 36(A) permits trial courts to correct clerical mistakes in

judgments or orders arising from oversight or omissions, using a nunc pro

tunc entry.” (Citation omitted.) State v. Roach, 2d Dist. Montgomery No.

23317, 2010-Ohio-566, ¶ 3. The use of a nunc pro tunc entry is limited to

reflecting what the court actually decided but failed to properly include in its

judgment. (Citations omitted.) State v. Ritchie, 2d Dist. Montgomery No.

24088, 2011-Ohio-2566, ¶ 8. Its sole function is to correct a clerical

mistake in the execution of a ministerial act. (Citations omitted.) Id. “ ‘The

term “clerical mistake” refers to a mistake or omission, mechanical in nature

and apparent on the record, which does not involve a legal decision or
 -16-

judgment.’ ” State v. Arnold, 2d Dist. Montgomery No. 22856, 2009-Ohio-

3636, ¶ 57, quoting State v. Brown, 136 Ohio App.3d 816, 820, 737 N.E.2d

1057 (3d Dist.2000). Therefore, “ ‘[t]he function of nunc pro tunc [entries]

is not to change, modify, or correct erroneous judgments, but merely to have

the record speak the truth.’ ” Ritchie at ¶ 10, quoting Ruby v. Wolf, 39 Ohio

App. 144, 147, 177 N.E. 240 (8th Dist.1931). “A nunc pro tunc entry cannot

be used to change something that was deliberately done.” (Citation

omitted.) Id.

State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983, 2019-Ohio-4897, ¶ 11.

See also State v. Priest, 2d Dist. Montgomery No. 25896, 2014-Ohio-3843, ¶ 11, citing

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 (“Where the

manner of conviction was missing, the trial court could correct the omission by means of

a nunc pro tunc entry.”)

{¶ 32} Since the trial court’s judgment entry incorrectly suggests that the jury found

him guilty of the RVO specifications, his assignment of error is sustained to that extent

only. The matter will be remanded to the trial court for it to issue a nunc pro tunc entry

clearly reflecting the manner of Oliver’s convictions on the repeat violent offender

specifications. We further note that the court erroneously cited R.C. 2929.14(D)(2)(a) in

connection with the repeat violent offender specifications, and there is no such section of

the code relating to those specifications. It appears to this Court that the trial court

intended to cite to R.C. 2929.14(B)(2)(a) in relation to the specifications. The trial court

is further instructed to correct the erroneously-cited code section “R.C. 2929.14(D)(2)(a).”

In all other respects, the judgment of the trial court will be affirmed.
 -17-

.............

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Heather N. Ketter
Jeffrey R. McQuiston
Hon. Timothy N. O’Connell