[Cite as State v. Breitenstine, 2013-Ohio-790.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs-
JERALD R. BREITENSTINE Case No. 2012 AP 05 0033
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case Nos. CRB 1100130, TRC 1100281 A-D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUGLAS V. JACKSON CARMEN V. ROBERTO New Philadelphia Prosecutor The Nantucket Building, Third Floor 150 East High Avenue 23 S. Main Street New Philadelphia, Ohio 44663 Akron, Ohio 44308 Tuscarawas County, Case No. 2012 AP 05 0033 2
Hoffman, J.
{¶1} Defendant-appellant Jerald R. Breitenstine appeals the April 12, 2012
judgment entered by the New Philadelphia Municipal Court denying his motion for new
trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was charged with operating a motor vehicle while intoxicated in
violation of R.C. 4511.19(A)(1), a misdemeanor of the first degree, and resisting arrest
in violation of R.C. 2921.33(A), a misdemeanor of the second degree. Following a jury
trial, Appellant was found guilty of both charges. The trial court then found Appellant
not guilty of various minor misdemeanor traffic charges.
{¶3} On February 13, 2012, Appellant moved the trial court for a new trial
pursuant to Rule 33 of the Ohio Rules of Criminal Procedure. The trial court conducted
a hearing on the motion on March 8, 2012. Via Judgment Entry filed April 12, 2012,
the trial court denied the motion.
{¶4} Appellant now appeals, assigning as error:
{¶5} "I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
FOR NEW TRIAL."
{¶6} R.C. 2945.79 reads,
{¶7} "A new trial, after a verdict of conviction, may be granted on the
application of the defendant for any of the following causes affecting materially his
substantial rights:
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Tuscarawas County, Case No. 2012 AP 05 0033 3
{¶8} "(A) Irregularity in the proceedings of the court, jury, prosecuting attorney,
or the witnesses for the state, or for any order of the court, or abuse of discretion by
which the defendant was prevented from having a fair trial;
{¶9} "(B) Misconduct of the jury, prosecuting attorney, or the witnesses for the
state;***"
{¶10} Ohio Criminal Rule 33 provides,
{¶11} "A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
{¶12} "(1) Irregularity in the proceedings, or in any order or ruling of the court, or
abuse of discretion by the court, because of which the defendant was prevented from
having a fair trial;
{¶13} "(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
{¶14} Accordingly, a new trial is warranted where misconduct has occurred, and
the defendant's substantial rights have been materially affected by the misconduct.
State v. Taylor (1991), 73 Ohio App.3d 827; State v. Jones (1992), 81 Ohio App.3d
348. The decision to grant a new trial is within the sound discretion of the trial court.
State v. Patel, 2nd Dist. No. 2010-CA-77, 2011 Ohio 6329; State v. Reynolds (1988),
49 Ohio St.3d 27.
{¶15} In Patel, supra, the Second District held,
{¶16} "In finding no prejudice to Patel, we reject his argument that prejudice
must be presumed in this case. In support, Patel relies on United States v. Lawhorne
(E.D.Va.1998), 29 F.Supp.2d 292. There a federal district court concluded that when Tuscarawas County, Case No. 2012 AP 05 0033 4
communications between a prosecutor and a juror during trial 'cannot be characterized
as innocuous, there arises a presumption of prejudice.' Id. at 308. In such a case, the
government bears the burden to establish the absence of prejudice. Id. In Patel's case,
however, the record reflects that the two communications at issue were innocuous. The
first involved a brief conversation that had nothing to do with Patel's trial. The second
involved a juror's wink in response to a detective either wishing the juror happy birthday
or telling another juror to have a nice day after the jury had been released from service.
We are unpersuaded that these communications created a presumption of prejudice. In
the absence of demonstrable prejudice to Patel, which does not exist in light of the trial
court's findings, we cannot say the trial court abused its discretion in denying the
motion for a mistrial and refusing to grant Patel a new trial. Accordingly, the first
assignment of error is overruled."
{¶17} In the case sub judice, Prosecutor Fete testified at the March 8, 2012
hearing on Appellant's motion for new trial,
{¶18} “Mr. Fete: Right after the jury was seated we took a brief break. She had
come -- - the jurors were returning from their break, she came over to me and asked
me if there was a Marvin Fete that was a teacher. She said, ‘Is there another Marvin
Fete that was a teacher?’ I said, ‘Yes, that’s my father.’ I said, ‘Did you have him in
school?’ And she said, ‘No.’ And that was it. That was the extent of the conversation.
I was seated here with the officer waiting for the jury to come back and - -
{¶19} “The Court: Where did the conversation take place? Like right where
you’re standing?
{¶20} “Mr. Fete: Yeah. I wasn’t even standing. I was sitting down. Tuscarawas County, Case No. 2012 AP 05 0033 5
{¶21} “The Court: Where was Mr. Gartrell and Mr. Breitenstine?
{¶22} “Mr. Fete: Right where they are now.
{¶23} “The Court: All right. Go ahead.
{¶24} “Mr. Fete: She asked me that casually and I said ‘Did you have him in
school,’ and she said ‘No,’ and walked away.
{¶25} “The Court: Okay.
{¶26} “Mr. Fete: So could’ve been a negative - - she had a negative thought of
my father but I didn’t think anything of it. It hadn’t started, the trial hadn’t even begun.
And if I remember the admonishment it was not that you couldn’t converse with
anyone, but you were not allowed to discuss the case with anyone. And that’s what I
recall the admonishment being told to the jurors.
{¶27} “The Court: Well, I think there is something in there, not so much directed
at anyone but it does say to the jurors don’t think that people here are being rude to
you, that we’re deliberately ignoring you, but it is not appropriate, that type of thing.
The jurors are told not to discuss the case. I mean obviously these instructions that
are given are fairly standardized and would be in the record. Okay. So basically - - so
I asked you the facts so I redirected you to that issue. But is there any additional
argument that you want to make, Mr. Fete, over and above what you filed with the
Court?
{¶28} “Mr. Fete: No, Your Honor. We believe the issue, if you don’t raise it at - -
I mean the whole purpose we have an alternate juror for that purpose in case
somebody does something inappropriate or wrong. This was before the trial started. It
was witnessed by both the Defendant and his attorney. It did not raise an objection, Tuscarawas County, Case No. 2012 AP 05 0033 6
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[Cite as State v. Breitenstine, 2013-Ohio-790.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs-
JERALD R. BREITENSTINE Case No. 2012 AP 05 0033
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia Municipal Court, Case Nos. CRB 1100130, TRC 1100281 A-D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUGLAS V. JACKSON CARMEN V. ROBERTO New Philadelphia Prosecutor The Nantucket Building, Third Floor 150 East High Avenue 23 S. Main Street New Philadelphia, Ohio 44663 Akron, Ohio 44308 Tuscarawas County, Case No. 2012 AP 05 0033 2
Hoffman, J.
{¶1} Defendant-appellant Jerald R. Breitenstine appeals the April 12, 2012
judgment entered by the New Philadelphia Municipal Court denying his motion for new
trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was charged with operating a motor vehicle while intoxicated in
violation of R.C. 4511.19(A)(1), a misdemeanor of the first degree, and resisting arrest
in violation of R.C. 2921.33(A), a misdemeanor of the second degree. Following a jury
trial, Appellant was found guilty of both charges. The trial court then found Appellant
not guilty of various minor misdemeanor traffic charges.
{¶3} On February 13, 2012, Appellant moved the trial court for a new trial
pursuant to Rule 33 of the Ohio Rules of Criminal Procedure. The trial court conducted
a hearing on the motion on March 8, 2012. Via Judgment Entry filed April 12, 2012,
the trial court denied the motion.
{¶4} Appellant now appeals, assigning as error:
{¶5} "I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION
FOR NEW TRIAL."
{¶6} R.C. 2945.79 reads,
{¶7} "A new trial, after a verdict of conviction, may be granted on the
application of the defendant for any of the following causes affecting materially his
substantial rights:
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Tuscarawas County, Case No. 2012 AP 05 0033 3
{¶8} "(A) Irregularity in the proceedings of the court, jury, prosecuting attorney,
or the witnesses for the state, or for any order of the court, or abuse of discretion by
which the defendant was prevented from having a fair trial;
{¶9} "(B) Misconduct of the jury, prosecuting attorney, or the witnesses for the
state;***"
{¶10} Ohio Criminal Rule 33 provides,
{¶11} "A new trial may be granted on motion of the defendant for any of the
following causes affecting materially his substantial rights:
{¶12} "(1) Irregularity in the proceedings, or in any order or ruling of the court, or
abuse of discretion by the court, because of which the defendant was prevented from
having a fair trial;
{¶13} "(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
{¶14} Accordingly, a new trial is warranted where misconduct has occurred, and
the defendant's substantial rights have been materially affected by the misconduct.
State v. Taylor (1991), 73 Ohio App.3d 827; State v. Jones (1992), 81 Ohio App.3d
348. The decision to grant a new trial is within the sound discretion of the trial court.
State v. Patel, 2nd Dist. No. 2010-CA-77, 2011 Ohio 6329; State v. Reynolds (1988),
49 Ohio St.3d 27.
{¶15} In Patel, supra, the Second District held,
{¶16} "In finding no prejudice to Patel, we reject his argument that prejudice
must be presumed in this case. In support, Patel relies on United States v. Lawhorne
(E.D.Va.1998), 29 F.Supp.2d 292. There a federal district court concluded that when Tuscarawas County, Case No. 2012 AP 05 0033 4
communications between a prosecutor and a juror during trial 'cannot be characterized
as innocuous, there arises a presumption of prejudice.' Id. at 308. In such a case, the
government bears the burden to establish the absence of prejudice. Id. In Patel's case,
however, the record reflects that the two communications at issue were innocuous. The
first involved a brief conversation that had nothing to do with Patel's trial. The second
involved a juror's wink in response to a detective either wishing the juror happy birthday
or telling another juror to have a nice day after the jury had been released from service.
We are unpersuaded that these communications created a presumption of prejudice. In
the absence of demonstrable prejudice to Patel, which does not exist in light of the trial
court's findings, we cannot say the trial court abused its discretion in denying the
motion for a mistrial and refusing to grant Patel a new trial. Accordingly, the first
assignment of error is overruled."
{¶17} In the case sub judice, Prosecutor Fete testified at the March 8, 2012
hearing on Appellant's motion for new trial,
{¶18} “Mr. Fete: Right after the jury was seated we took a brief break. She had
come -- - the jurors were returning from their break, she came over to me and asked
me if there was a Marvin Fete that was a teacher. She said, ‘Is there another Marvin
Fete that was a teacher?’ I said, ‘Yes, that’s my father.’ I said, ‘Did you have him in
school?’ And she said, ‘No.’ And that was it. That was the extent of the conversation.
I was seated here with the officer waiting for the jury to come back and - -
{¶19} “The Court: Where did the conversation take place? Like right where
you’re standing?
{¶20} “Mr. Fete: Yeah. I wasn’t even standing. I was sitting down. Tuscarawas County, Case No. 2012 AP 05 0033 5
{¶21} “The Court: Where was Mr. Gartrell and Mr. Breitenstine?
{¶22} “Mr. Fete: Right where they are now.
{¶23} “The Court: All right. Go ahead.
{¶24} “Mr. Fete: She asked me that casually and I said ‘Did you have him in
school,’ and she said ‘No,’ and walked away.
{¶25} “The Court: Okay.
{¶26} “Mr. Fete: So could’ve been a negative - - she had a negative thought of
my father but I didn’t think anything of it. It hadn’t started, the trial hadn’t even begun.
And if I remember the admonishment it was not that you couldn’t converse with
anyone, but you were not allowed to discuss the case with anyone. And that’s what I
recall the admonishment being told to the jurors.
{¶27} “The Court: Well, I think there is something in there, not so much directed
at anyone but it does say to the jurors don’t think that people here are being rude to
you, that we’re deliberately ignoring you, but it is not appropriate, that type of thing.
The jurors are told not to discuss the case. I mean obviously these instructions that
are given are fairly standardized and would be in the record. Okay. So basically - - so
I asked you the facts so I redirected you to that issue. But is there any additional
argument that you want to make, Mr. Fete, over and above what you filed with the
Court?
{¶28} “Mr. Fete: No, Your Honor. We believe the issue, if you don’t raise it at - -
I mean the whole purpose we have an alternate juror for that purpose in case
somebody does something inappropriate or wrong. This was before the trial started. It
was witnessed by both the Defendant and his attorney. It did not raise an objection, Tuscarawas County, Case No. 2012 AP 05 0033 6
therefore, believe they waived their right to object. And that this is merely an attempt to
get a second bite of the apple and we outline that in our Reply.”
{¶29} Tr. at 5-7.
{¶30} Upon review of the record, we find the brief conversation between the
juror and the prosecutor took place prior to the start of the trial, did not pertain to the
case and was innocuous. The conversation did not create a presumption of prejudice,
and did not materially affect the substantial rights of Appellant. Accordingly, we find
the trial court did not abuse its discretion in denying Appellant's motion for a new trial.
{¶31} The April 12, 2012 judgment entered by the New Philadelphia Municipal
Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ John W. Wise _____________________ HON. JOHN W. WISE Tuscarawas County, Case No. 2012 AP 05 0033 7
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JERALD R. BREITENSTINE : : Defendant-Appellant : Case No. 2012 AP 05 0033
For the reason stated in our accompanying Opinion, the April 12, 2012 judgment
entered by the New Philadelphia Municipal Court is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________ HON. JOHN W. WISE