State v. Fisher

[Cite as State v. Fisher, 2021-Ohio-3788.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 2-21-06

v.

DWAYNE M. FISHER, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Municipal Court
Trial Court No. 2020 CRB 00401

Judgment Affirmed

Date of Decision: October 25, 2021

APPEARANCES:

Jeremy M. Tomb for Appellant

Reed D. Searcy for Appellee
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SHAW, J.

{¶1} Defendant-appellant, Dwayne Fisher (“Fisher”), brings this appeal

from the April 13, 2021, judgment of the Auglaize County Municipal Court

sentencing him to 300 days in jail after Fisher was convicted by a jury of failure to

comply with order or signal of police officer in violation of R.C. 2921.331(B), a

first degree misdemeanor, attempted theft in violation of R.C. 2923.02(A) and R.C.

2913.02(A)(1), a second degree misdemeanor, and criminal trespass in violation of

R.C. 2911.21(A)(1), a fourth degree misdemeanor.

Background

{¶2} Wapak Ford is a vehicle dealership in Wapakoneta that also services

local police cruisers. The cruisers are generally kept in an area called “the bullpen,”

which is a fenced section of the dealership property. On July 10, 2020, it was

discovered that a large hole had been cut in the bullpen’s fence and that the wheels,

tires, headlights, and taillights were missing from a police cruiser. The police

cruiser had been left on cinder blocks. There were no cameras observing the bullpen

area and no suspects were identified from the incident.

{¶3} On July 19, 2020, a married couple was browsing vehicles at Wapak

Ford when they noticed a suspicious individual in the bullpen who was stretched

across the front of a police cruiser with the cruiser’s hood up. At first the couple

thought the individual was working on the police cruiser, but when the individual

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saw the couple, the individual moved out of the couple’s view. The couple found it

suspicious that the individual did not continue working on the vehicle. Shortly

thereafter the couple observed a dark-colored ford truck with camo trim across the

bottom driving away from the area. They reported the matter to the police. It was

eventually discovered that the police cruiser in the bullpen was missing its hood.

{¶4} Minutes after the couple observed the truck driving away from the

dealership, a black truck with camo trim was observed driving at an excessive rate

of speed on a residential street in Wapakoneta. Residents thought the driver was

doing at least 50 mph in a 25 mph zone. Pictures of the truck were captured on one

resident’s security camera. When the truck stopped at one point, a resident observed

the license plate, HQW3632, and reported the matter to the police.

{¶5} Wapakoneta police officers quickly located a vehicle matching the

descriptions provided from the dealership and the residential neighborhood. When

one officer activated his overhead lights to initiate a traffic stop of a black Ford truck

with camo trim, the driver sped off. A chase ensued through streets and alleyways

of Wapakoneta. Multiple officers attempted to follow the truck but it was driving

at dangerous speeds down residential roads. Officers followed the truck outside of

Wapakoneta but they eventually lost sight of the vehicle and stopped their pursuit.

{¶6} Approximately fifteen minutes after officers lost sight of the truck they

were pursuing, an Auglaize County Sheriff’s Deputy located a truck matching the

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description with the license plate HQW3632. The deputy activated his overhead

lights and initiated a traffic stop. The individual driving the truck, Fisher, pulled

over immediately.

{¶7} Fisher denied being involved in a police chase. In fact, he denied being

in Wapakoneta at all that day. Fisher told officers that he was a mechanic, though

he indicated he would prefer not to state where he worked.

{¶8} Officers located numerous suspicious items in Fisher’s truck such as a

ski-mask, black gloves, and various tools. Most suspicious were “three nuts with

washers on them” that were “the exact same size that was used to hold a hood onto

those hood hinges.” (Tr. at 257-258). The next day, the hood that had been attached

to the police cruiser in the Wapak Ford bullpen was located in a cornfield in an area

near where the Ford truck with the camo trim had been lost during pursuit.

{¶9} On July 20, 2020, Fisher was charged with “failure to comply with order

or signal of police officer” in violation of R.C. 2921.331(B), a first degree

misdemeanor, attempted theft in violation of R.C. 2923.02(A) and

R.C.2913.02(A)(1), a second degree misdemeanor, and criminal trespass in

violation of R.C. 2911.21(A)(1), a fourth degree misdemeanor. Fisher pled not

guilty to the charges and proceeded to a jury trial, which was held February 22-23,

2021.

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{¶10} Just after the case was submitted to the jury for deliberations, an

alternate juror came forward to inform the trial court and the parties of concerns

over two comments that had been made by a member of the jury during recesses in

the trial. The alternate juror explained the comments, then the trial court and the

parties asked the alternate juror questions regarding the comments. The trial court

determined that it would allow deliberations to proceed; however, in the event that

the jury found Fisher guilty of any of the charges, the trial court indicated it would

allow the jury to be polled and questioned regarding the purportedly improper

comments.

{¶11} Ultimately the jury found Fisher guilty of all counts in the complaint.

The jury was then asked whether they had heard any of the improper comments

made by a fellow juror and only a few had. The jurors were asked if they were

influenced by the comments and they indicated that they were not. All jurors,

including the juror who made the purportedly improper comments, indicated that

they made their determination based on the evidence.

{¶12} Nevertheless, Fisher moved for a mistrial and requested a new trial

based on juror misconduct. The state filed a written response. On April 13, 2020,

the trial court filed a judgment entry overruling Fisher’s motion for a new trial.

{¶13} On April 13, 2020, the matter proceeded to sentencing. Fisher was

sentenced to 180 days in jail on the failure to comply with order or signal of police

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officer charge, 90 days in jail on the attempted theft charge, and 30 days in jail on

the criminal trespass charge. The jail terms were ordered to be served consecutively,

for an aggregate term of 300 days. A judgment entry memorializing Fisher’s

sentence was filed that same day. It is from this judgment that Fisher appeals,

asserting the following assignments of error for our review.

Assignment of Error No. 1
The Trial Court committed error in overruling the defendant’s
oral motion for a new trial pursuant to Criminal Rule 33(A) and
determining the best course of action was to let the jury finish its
deliberations and render a verdict and further erred by not
conducting a hearing before all parties at that time when the court
had an opportunity to investigate and address the alleged
irregularities before the verdict was accepted by the trial court.

Assignment of Error No. 2
The Trial Court committed error in overruling defendant’s oral
motion for a new trial pursuant to Criminal Rule 33(A) when
juror misconduct substantially affected defendant’s material
rights to be tried by a fair and impartial jury.

{¶14} As both assignments of error address the trial court’s denial of Fisher’s

motion for a new trial, we will address them together.

First and Second Assignments of Error

{¶15} In his first assignment of error, Fisher argues that the trial court erred

by permitting the jury to continue its deliberations in this matter before investigating

the purportedly improper juror comments and how the comments impacted the jury.

In his second assignment of error, Fisher argues that the juror’s comments

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constituted misconduct and they affected Fisher’s substantial rights. Thus he

contends the trial court abused its discretion by denying his motion for a new trial.

Standard of Review

{¶16} A determination on a Crim.R. 33 motion for a new trial is within the

sound discretion of the trial court and will not be reversed absent an abuse of

discretion. State v. Cummings, 8th Dist. Cuyahoga No. 106261, 2018-Ohio-3993,

¶ 19, citing State v. Schiebel, 55 Ohio St.3d 71, 77 (1990). “ ‘The term “abuse of

discretion” * * * implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, (1980).

{¶17} Furthermore, as to Fisher’s claim that the trial court mishandled the

inquiry into the juror’s purportedly improper comments, the Supreme Court of Ohio

has held that “[a]s a reviewing court, we show deference to the trial judge, who sees

and hears the events and thus is in a better position to accurately evaluate the

situation and determine the appropriate scope of inquiry.” State v. Hessler, 90 Ohio

St.3d 108, 115-116, 2000-Ohio-30, citing State v. Huertas, 51 Ohio St.3d 22, 29

(1990). Therefore, we employ an abuse-of-discretion standard as to how the trial

court handled alleged juror misconduct. Id. citing State v. Adams, 62 Ohio St.2d

151, 157 (1980).

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Relevant Authority

{¶18} Pursuant to Crim.R. 33(A)(2), “A new trial may be granted on motion

of the defendant for any of the following causes affecting materially his substantial

rights: * * * (2) Misconduct of the jury, prosecuting attorney, or the witnesses for

the state.” A new trial shall not be granted on this or any other of the allowed

grounds of Crim.R. 33 “unless it affirmatively appears from the record that the

defendant was prejudiced thereby or was prevented from having a fair trial.”

Crim.R. 33(E)(5).

{¶19} In addressing claims of juror misconduct, a court must employ a two-

step analysis. First, a court will determine whether juror misconduct occurred, and

second, if juror misconduct is found, the court will determine whether the

misconduct materially affected the defendant’s substantial rights. State v. Taylor,

73 Ohio App.3d 827, 833 (4th Dist.1991); State v. Samatar, 152 Ohio App.3d 311,

2003-Ohio-1639, ¶ 35 (10th Dist.). The party complaining of alleged juror

misconduct must establish prejudice. State v. Edwards, 10th Dist. Franklin No.

17AP-738, 2019-Ohio-3012, ¶ 52.

Analysis

{¶20} In order to determine whether juror misconduct occurred in this

matter, and whether the trial court erred in the procedure that was conducted to

determine potential juror misconduct, we must review the specifics of what

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transpired in its proper context. The first time the trial court and the parties were

made aware that there was any purported juror misconduct was after the case had

been submitted to the jury for deliberations. At that time, an alternate juror

approached the trial court and indicated that a member of the jury had made some

potentially inappropriate comments. The trial court asked the alternate juror to

explain the comments and the following exchange occurred.

[Alternate Juror]: Yesterday the comment was – he said, I’m no
lawyer or anything, but don’t both sides get to review the same
evidence.

COURT: And that was – was that concerning one of the
objections made when we took a break?

[Alternate Juror]: Yes, exactly.

COURT: Okay. Was there any response from the other members
to that?

[Alternate Juror]: Uh—no, no real response uh—somebody may
have said mmm—I don’t know or something, but I don’t know
anybody – but basically that was the end of it. Uh—it felt
inappropriate at that time and that’s why there was so much
silence there, so uh—I’m sorry for all this but it’s just in good
conscience. I want to make sure it’s known. I don’t know what’s
appropriate and what’s not. I know I was instructed to not speak
of the case at all. I basically didn’t speak at all, uh—even when
they were talking about general just day to day stuff, weather,
whatever.

COURT: [Prosecutor] on this point do you have any questions?

[Prosecutor]: Uh—the only question is – it will probably be the
same question for your next tidbit, but again, this was said
yesterday correct?

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[Alternate Juror]: Correct.

[Prosecutor]: So it was said before the instructions the Judge
were given – gave at the end just now before we all left?

[Alternate Juror]: Today, yes.

[Prosecutor]: Okay.

[Alternate Juror]: But he had instructed us many times not to
discuss the case when we were in there.

[Prosecutor]: Sure, but as far as that comment, he made that – it
was before the final instructions?

[Alternate Juror]: Correct.

[Prosecutor]: Okay.

COURT: [Defense counsel]?

[Defense Counsel]: Thank you your honor. Did you get the sense
when he made that statement uh—did he give you a sense that he
kind of fashioned some kind of thought of concept in his mind of
my client’s innocence or guilt?

[Alternate Juror]: Uh—I didn’t personally, but I did feel like it
could be construed that way by somebody else.

[Defense Counsel]: Did he seem incredulous because we were
contesting whether information had been presented?

[Alternate Juror]: Yes, that’s how it felt. And again, I don’t know
cause we were ushered out, but it seemed to me that you did not
get some point of evidence, I believe it was a video clip or
something yesterday and uh—we were moved out pretty quickly
and uh—that’s when he made that comment.

[Defense counsel]: Okay, thank you for that.

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COURT: Okay, can you explain the comment made earlier
today?

[Alternate Juror]: The comment today was uh—he doesn’t – isn’t
– I think he said isn’t the defendant going to testify. Uh—and
then he said – he had like a short pause there and then he said if I
were uh—if I were innocent I would want to testify, uh—that’s
what he said and then another juror did say uh—I don’t think
that uh—the defendant has to testify. Then that was the end of
that conversation. Again it created a pause uh—kind of an uneasy
pause uh—after that statement just cause it, to me, at least
personally, felt really inappropriate.

[Prosecutor]: Yes your honor. Same question uh—I had before,
was that, when the second comment was made was that before
Judge gave his final instructions to the jury?

[Alternate Juror]: Yes.

[Prosecutor]: Okay. All right. No further questions.

COURT: And [defense counsel].

[Defense counsel]: I just want to confirm, do you feel like that was
complying with the Court’s instructions early on which was not
to discuss innocence or guilt or about what was a proper
presumption to make whether the defendant took the stand or
not?

[Alternate Juror]: I don’t feel it was appropriate, no.

(Tr. at 336-340).

{¶21} According to the parties, Fisher orally moved for a mistrial after this

discussion, but the trial court denied the request at that time.1 The trial court

1
This was not recorded in the transcript but the parties and the trial court are in agreement that it occurred.

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indicated that the jury would be allowed to deliberate, and if any guilty verdicts

were returned, the jury could be questioned regarding any comments that had been

made, whether the comments were heard, and whether they had any impact on the

matter.

{¶22} The jury returned guilty verdicts on all counts against Fisher. After

the verdicts were read, the jury was polled and the jurors individually indicated that

the verdicts announced were their true, individual verdicts.

{¶23} The trial court then addressed the jury and stated that an issue had been

brought to the court’s attention regarding comments that had been made by a juror

regarding a defendant’s right not to testify. The trial court told the jury that the court

was going to permit the parties to inquire regarding the comments.

{¶24} Following some questioning, defense counsel was able to identify the

juror who made the comments and he addressed the juror directly. Defense counsel

stated, “There was a statement made today that [you said] why wouldn’t you take

the stand if you weren’t guilty. Did you make that statement?” (Tr. at 346). The

juror responded

I don’t know if I made the statement in that – with those remarks
um.. I had questions why the defendant wouldn’t take the stand.
Because my understanding that the defendant would take the
stand. Take the stand and be questioned by the attorneys so the
comment wasn’t in either way persuaded in any decision as to
what my verdict in the trial is.

(Tr. at 346).

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{¶25} The juror was then asked if he recalled in voir dire that if the defendant

did not take the stand it did not mean he was guilty or not guilty. The juror indicated

he vaguely recalled that. When asked, the juror also stated that he recalled the judge

giving an instruction that he was not permitted to consider “that” before the juror

made any statement with regard to the defendant testifying. Further, the juror

indicated he recalled being instructed not to talk about guilt, or anything regarding

the proceedings, amongst the jury prior to deliberations.

{¶26} After the juror who made the comments was addressed directly, the

jury as a whole was asked who had heard the comments made by the juror in

question regarding the defendant testifying, and three jurors indicated that they

heard a comment. When questioned about whether the comment impacted his

opinion, one juror indicated that he did not consider why the defendant would not

take the stand, but he “wondered if it was an actual thing that they have a choice so

I understand they have a choice to or not to (inaudible).” (Tr. at 349). Another juror

indicated she was aware even before the trial court’s instructions that a defendant

did not have to take the stand. The third juror who heard the comment indicated the

comment did not influence which way he was going to vote.

{¶27} Defense counsel then re-addressed the juror who made the purportedly

improper comment, or asked a purportedly improper question. Defense counsel

asked the juror to clarify why he asked the question regarding the defendant

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testifying and the juror stated, “I wasn’t I wasn’t [sic] ah aware whether he would

take the stand or not take the stand and I had asked the question because I wasn’t

understanding as to actual proceedings of them taking the stand and not taking the

stand.” (Tr. at 350).

{¶28} Defense counsel then replied, “Well the alternate juror[’]s position on

this when he testified was that you said ‘why would you take the stand if you weren’t

guilty.’ ” (Id.) The juror responded, “I didn’t say it like that. I don’t believe that it

was said it [sic] like that at all.” (Id.) Following the response, defense counsel

indicated he had no further questions.

{¶29} The prosecutor then asked each juror individually, “when reaching

your verdict in this case did you come to your decision based on the testimony as

its presented, the law, the judge’s instructions, and nothing else?” (Tr. at 351). All

eight jurors responded that they only considered the information and evidence

presented as instructed.

{¶30} Following the prosecutor’s question, the judge specifically stated to

the jury:

The instructions you were given was that it is not necessary for
the defendant to take the witness stand in his own defense. He has
a constitutional right [not] to testify. You must not consider the
fact he did not testify for any purpose. Did any of you, * * * did
you consider his not testifying for any purpose? Did you [sic]
whether or not he testified for any purpose?

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(Tr. at 353). In response to the judge’s question, each juror individually

affirmatively indicated that he or she did not consider the fact that Fisher did not

testify for any purpose.

{¶31} Notwithstanding these statements, Fisher moved for a new trial,

alleging juror misconduct in this matter. The trial court permitted briefing on the

issue, then filed a written entry analyzing the issue of juror misconduct. Ultimately

the trial court denied Fisher’s motion for a new trial. The trial court found that one

comment was procedural in nature and did not constitute misconduct. Next, the trial

court determined that any other purportedly improper comments by one juror were

made prior to the trial court’s final instructions, wherein the jury was specifically

instructed that Fisher had a constitutional right not to testify and that the jury could

not consider the fact that he did not testify for any purpose. Further, the trial court

indicated that all of the jurors were individually questioned and they all indicated

that the verdicts were based on the testimony and evidence presented during trial.

Finally, the trial court determined that Fisher was not prejudiced by the comments

made by the juror and that, even absent the comments, the jury would have been

able to find Fisher guilty based on the totality of the evidence.

{¶32} On appeal, Fisher raises two primary issues with the trial court’s denial

of his motion for a new trial. First, he contends that the trial court had a duty to hold

a hearing immediately upon learning of the purportedly improper comments of the

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juror and thus the trial court erred by allowing deliberations to continue before

questioning the jury regarding the purportedly improper juror comments.

{¶33} While it might have been a permissible option to question the jury

about potentially improper comments prior to the jury rendering a verdict, the

important fact is that the trial court held what amounted to a hearing on the alleged

juror misconduct wherein the purported misconduct was addressed, regardless of

the timing of the hearing. The Supreme Court of the United States has stated: “If

the hearing and determination to replace a juror during trial would have adequately

protected respondent’s right to due process of law * * * we see no reason why a

post-trial hearing and determination would be any less protective or possible.”

Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946 (1982) at fn 8. Here, the

trial court specifically inquired regarding the comments after the verdict was

announced and allowed the parties to inquire as well. Although the trial court could

have interrupted the deliberations to address the matter, there is no indication that a

post-deliberation inquiry was any less sufficient than a pre-deliberation inquiry

would have been.

{¶34} The fact is, the trial court had a duty to hold a hearing and it did so.

State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, ¶ 36, citing State v.

Phillips, 74 Ohio St.3d 72, 88–89 (1995) (“[W]hen a trial court learns of possible

improprieties that might affect the impartiality of a juror, the court has a duty to hold

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a hearing to determine whether any bias has been introduced into the jury

room.”). Fisher cites no legal authority that the hearing or inquiry by the trial court

had to be done prior to deliberations. Rather, the important issue was that the trial

court inquire into possible prejudice with a juror and to give the parties an

opportunity to address any alleged juror bias. See Gunnell at ¶ 37. Even the seminal

case of Remmer v. U.S., 347 U.S. 227, 74 S.Ct. 450, did not indicate that a hearing

on possible juror misconduct had to occur prior to deliberations. Therefore, in the

absence of authority to the contrary, we cannot find that the trial court abused its

discretion by the way it conducted the inquiry into the matter of juror misconduct.

This is particularly true given that if the jury had returned not guilty verdicts, any

need for a hearing would have been completely obviated. Accordingly, Fisher’s

first assignment of error is overruled.

{¶35} Next, Fisher argues that there was juror “misconduct” in this matter

and that the misconduct substantially affected his material rights. Because of what

he claims was juror misconduct, he contends that the trial court abused its discretion

by denying his motion for a new trial.

{¶36} Notably, from the inquiry into the matter, it is unclear exactly what the

juror actually said in the jury room, thus it is difficult to label it affirmatively as

misconduct. Nevertheless, even if we assumed the worst form of the juror’s

statements as expressed through the alternate juror, and even if we assumed that

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they were misconduct, there is no indication that the comments impacted Fisher’s

substantial rights. In fact, the inquiry by the parties and the trial court into the matter

shows just the opposite.

{¶37} The jurors were specifically asked whether they considered Fisher’s

decision not to testify for any purpose, and the jurors indicated that they did not. “A

juror’s belief in his or her own impartiality is not inherently suspect and may be

relied upon by the trial court.” State v. Phillips, 74 Ohio St.3d 72, 89 (1995), citing

Smith v. Phillips, 455 U.S. at 217, 102 S.Ct. at 947 at fn. 7.

{¶38} Furthermore, as the trial court stated in its entry denying Fisher’s

motion for a new trial, any errant comments made by one juror were prior to the

trial court’s final jury instructions in this case, which specifically stated, “It is not

necessary that the defendant take the witness stand in his own defense. He has a

constitutional right not to testify. You must not consider the fact that he did not

testify for any purpose.” (Tr. at 331). Pursuant to the Supreme Court of Ohio, “A

jury is presumed to follow the instructions, including curative instructions, given it

by a trial judge.” State v. Garner, 74 Ohio St.3d 49, 59 (1995), citing State v. Loza,

71 Ohio St.3d 61, 75 (1994).

{¶39} There simply is no indication of prejudice in this case, even assuming

that the juror’s comments were improper. To the contrary, the jury members were

very specifically and explicitly questioned regarding the comments and the jury

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members indicated that their verdicts were made based only on the evidence

presented. Given the inquiry and the jury’s responses, we cannot find that the trial

court abused its discretion by denying Fisher’s motion for a new trial. Therefore,

Fisher’s second assignment of error is overruled.

Conclusion

{¶40} For the foregoing reasons Fisher’s assignments of error are overruled

and the judgment and sentence of the Auglaize County Municipal Court is affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/jlr

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