[Cite as State v. Nicholson, 2017-Ohio-7312.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, J.
-vs-
Case No. 2017 CA 00082
DAMARCUS NICHOLSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2016 CR 01465(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 21, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO DAMARCUS NICHOLSON
PROSECUTING ATTORNEY BELMONT CORR. INSTITUTION
KRISTINE W. BEARD Post Office Box 540
ASSISTANT PROSECUTOR St. Clairsville, Ohio 43950
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00082 2
Wise, John, J.
{¶1} Appellant Damarcus Nicholson appeals the decision of the Court of
Common Pleas, Stark County, which denied his request for a transcript at State expense
of certain criminal proceedings that had ended in a mistrial. Appellee is the State of Ohio.
The relevant facts leading to this appeal are as follows.
{¶2} In August 2016, Appellant Nicholson was indicted by the Stark County
Grand Jury on one count of trafficking in heroin, one count of aggravated trafficking in
drugs, one count of possession of heroin, and one count of aggravated possession of
drugs.
{¶3} On August 22, 2016, appellant filed a motion to suppress evidence of drugs
that had been seized from a rental vehicle he had been using. On September 9, 2016,
the trial court denied appellant's motion to suppress, concluding that appellant lacked
standing to seek suppression of the evidence seized from the rental vehicle.
{¶4} The matter proceeded to a jury trial on September 28, 2016. However, the
matter ended in a mistrial on the same day, based on an issue involving a motion in
limine.
{¶5} Following a second jury trial, commencing on September 29, 2016,
appellant was found guilty as charged in the indictment. The trial court sentenced him
on Count I, trafficking in heroin, to a prison term of eight years. For purposes of
sentencing only, Counts II and III were merged into Count I, and a twelve-month
sentence on Count IV was ordered to be served concurrently, for an aggregate sentence
of eight years.
Stark County, Case No. 2017 CA 00082 3
{¶6} Appellant then appealed directly to this Court; however, we affirmed his
conviction on May 15, 2017. See State v. Nicholson, 5th Dist. Stark No. 2016CA00210,
2017-Ohio-2825.
{¶7} In the meantime, the trial court issued a written judgment entry on October
11, 2016, memorializing the mistrial that had occurred on September 28, 2016. In
addition, on April 28, 2017, shortly before the issuance of our decision in regard to
appellant’s direct appeal, appellant filed a pro se request with the trial court for a
transcript of the proceedings leading to the mistrial of September 28, 2016.
{¶8} On May 2, 2017, via judgment entry, the trial court denied appellant’s
request for said transcript.
{¶9} On May 18, 2017, appellant filed a pro se notice of appeal. He herein raises
the following sole Assignment of Error:
{¶10} “I. THE TRIAL COURT ERRED IN ITS DECISION TO DENY
APPELLANT’S MOTION FOR MISTRIAL TRANSCRIPTS.”
I.
{¶11} In his sole Assignment of Error, appellant contends the trial court erred in
denying his request for a transcript, at State Expense, of the mistrial proceedings of
September 28, 2016. We disagree.
{¶12} “[I]n the criminal arena it is an established constitutional right that an
indigent defendant must be afforded a transcript of trial proceedings or its equivalent for
an effective appeal.” State v. Parker, 7th Dist. Mahoning No. 92 CA 135, 2002-Ohio-
1151, citing Britt v. North Carolina (1971), 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400.
The Ohio Supreme Court has similarly held that the State must provide an indigent
Stark County, Case No. 2017 CA 00082 4
criminal defendant with a transcript of prior proceedings when that transcript is needed
for an effective defense or appeal. State v. Arrington (1975), 42 Ohio St.2d 114, 326
N.E.2d 667, paragraph one of the syllabus. But the State bears the burden of showing
that such a transcript is not necessary or that alternative devices that would fulfill the
same function are available. See State v. Hoff, 5th Dist. Fairfield No. 02-CA-89, 2003-
Ohio-3858, ¶ 14, citing Arrington, supra.
{¶13} In the case sub judice, appellant’s “motion for mistrial transcripts” in the trial
court made the general assertion that such transcripts “are needed for the furtherance
of petitioners [sic] direct appeal.” However, at the time appellant filed his motion on April
28, 2017, his direct appeal following the second trial, which raised suppression issues
only, had already been briefed, heard at oral argument, and taken under advisement by
this Court. Furthermore, there is no indication that any transcribed record of the mistrial
testimony was requested for purposes of or utilized in the second trial.1 While it would
have been the better practice for the trial court to have allowed more time for the State
to formally respond to appellant’s mistrial transcript request in accordance with Arrington,
under the circumstances presented we find no demonstration by appellant of prejudicial
error warranting reversal.
1 In contrast, in State v. Thacker, 54 Ohio St.2d 43, 374 N.E.2d 642 (1978), the
defendant, Gary Thacker, had requested transcripts of the testimony of eleven witnesses
from his prior mistrial. However, in concluding the request for transcripts from the mistrial
had been improperly overruled, the Ohio Supreme Court noted Thacker had specifically
claimed that such transcripts were necessary in order to adequately prepare for a second
trial. Id. at 43, 44.
Stark County, Case No. 2017 CA 00082 5
{¶14} Accordingly, appellant's sole Assignment of Error is overruled.
{¶15} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/d 0727
State v. Nicholson
Combined Opinion