[Cite as State v. Laster, 2013-Ohio-621.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25019 Plaintiff-Appellee : : Trial Court Case No. 11-CRB-5519 v. : : SADE LASTER : (Criminal Appeal from : (Dayton Municipal Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 22nd day of February, 2013.
...........
JOHN J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0067101, by TROY B. DANIELS, Atty. Reg. #0084957, Dayton City Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
JOHN VOGEL, Atty. Reg. #0071169, 35 East Gay Street, Suite 212, Columbus, Ohio 43215 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Sade Laster appeals from her conviction and sentence following a jury trial on
one count of misdemeanor assault. [Cite as State v. Laster, 2013-Ohio-621.] {¶ 2} In her sole assignment of error, Laster contends the trial court erred in failing
to provide a full transcript of proceedings below, including voir dire, rendering her unable to
pursue an appeal based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986).
{¶ 3} The record reflects that Laster was charged with assault for participating in an
attack on the victim, Chelsea Probert, by striking her in the face. The jury found Laster guilty.
The trial court imposed a 180-day jail sentence, gave Laster credit for nine days served, and
suspended the remaining 171 days subject to two years of community control with conditions.
The trial court suspended a $150 fine but imposed court costs.1 This appeal followed.
{¶ 4} After Laster filed her opening appellate brief complaining about the
absence of a transcribed voir dire, a supplemental transcript was filed. That transcript contains
the omitted voir dire. Upon receiving the new transcript, Laster filed a supplemental appellate
brief. Therein, she asserts that the new transcript “remains incomplete and does not contain
sufficient information” to enable her to pursue a purported Batson issue on appeal. More
specifically, Laster argues:
On page 44, after defense counsel and the prosecution have each
finished questioning the jury, the trial judge holds an unrecorded sidebar. Then
the trial judge begins dismissing jurors from the venire, and begins to seat the
jury. 1 A review of the trial court’s on-line docket suggests that Laster’s community control may have been terminated early. The trial court’s docket also reflects, however, that she never paid her court costs, which, with additional fees, now total $903.46. Because the court costs remain unpaid, Laster’s misdemeanor appeal is not moot despite her completion of community control and the absence of any other apparent collateral consequences stemming from her conviction. Cf. State v. Caudill, 2d Dist. Montgomery No. 24881, 2012-Ohio-2230, ¶9 (recognizing that a misdemeanor appeal is moot after the judgment has been voluntarily satisfied unless some collateral legal disability or loss of civil rights exists). 3
There is no record of any peremptory challenges, challenges for cause,
objections or arguments by either party recorded in the transcript of voir dire.
Only the questioning preliminary to the actual strikes [is] included, not the
strikes themselves nor what follows them.
However, we do know that some jurors are excused for cause or by
peremptory challenges. We know this because, when the trial judge seats the
jury, some jurors out of the first twelve are removed, and other jurors farther
down in the venire take their seats. Thus, juror number 16 moves to seat three,
juror number 21 moves to seat number 4, etc.
We have no way of knowing from the transcript whether the State
excused any black jurors for cause or by peremptory challenge, whether the
defense made any objection to such challenges, whether the state offered any
proper reasons for so doing, whether there were even any black jurors present
in the venire, whether the prosecutor struck a disproportionate number of
black jurors, etc.
(Appellant’s supplemental brief, pg. 4) (Emphasis added).
{¶ 5} Attached to Laster’s original appellate brief is an affidavit in which she avers
that her attorney objected to the removal of two out of three black potential jurors. The
affidavit does not say whether the two black potential jurors were removed for cause or with
peremptory challenges and does not specify whether her trial attorney’s purported objection
raised a Batson challenge. In the brief of the appellee, counsel for the state, who was also trial
counsel, denies that there was any Batson challenge and asserts that the appellant, seated close 4
to the jury, was not at, or able to hear the sidebar conferences anyway. In any event, based
upon appellant’s affidavit and the lack of a transcript reflecting what occurred when potential
jurors were stricken, Laster contends we must reverse her conviction and remand for a new
trial. In support, she reasons that we cannot know whether her rights were violated under
Batson and, as a result, that we cannot exclude the possibility of prejudicial error.
{¶ 6} Upon review, we find Laster’s argument to be unpersuasive. As an initial
matter, we cannot consider her affidavit, which was created after her appeal and was not part
of the record below. State v. Brown, 2d Dist. Clark No. 2009 CA 96, 2010-Ohio-4391, ¶9 fn.1;
State v. Mathers, 2d Dist. Clark No. 2000 CA 92, 2002-Ohio-4117, ¶8. Absent that affidavit,
Laster admits the record contains no evidence to support a Batson argument. The voir dire
transcript simply reflects the trial court excusing certain prospective jurors after counsel
completed questioning. (See Supplemental Tr. at 44-45). Any discussion about excusing the
prospective jurors apparently occurred at two unrecorded sidebars. (Id.).2
{¶ 7} Contrary to Laster’s argument, failure to record the two sidebars does not
require reversal. Although non-production of a complete record can require reversal of a
conviction, all reasonable solutions first must be exhausted without success. State v. Lewis, 2d
Dist. Montgomery No. 23850, 2011-Ohio-1411, ¶26. This includes resort to App.R. 9, which
“provides a process by which a statement of the evidence may be created to cure the defect of
the lack of an entire transcript, let alone individual defects.” Id. at ¶28. In particular, App.R.
9(E) contains procedures to correct the record if anything material is omitted. Moreover, under
2 The better practice would be for the trial court to record the sidebars, or, at some time and manner out of the jury’s hearing, at least the court and counsel should reiterate on the record what had occurred during unrecorded sidebars. 5
App.R. 9(C), Laster’s counsel could have prepared a statement of the unrecorded sidebars
“from the best available means” and submitted it to the trial court to settle any objections. Id.
Counsel also could have sought an agreed statement regarding what occurred at the sidebars.
Id. Input could have been acquired from trial counsel for the defendant and for the state, and
most importantly, from the trial court itself. Because Laster made no effort to reconstruct the
record under App.R. 9 to identify what occurred during the two sidebars, their failure to be
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[Cite as State v. Laster, 2013-Ohio-621.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25019 Plaintiff-Appellee : : Trial Court Case No. 11-CRB-5519 v. : : SADE LASTER : (Criminal Appeal from : (Dayton Municipal Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 22nd day of February, 2013.
...........
JOHN J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0067101, by TROY B. DANIELS, Atty. Reg. #0084957, Dayton City Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
JOHN VOGEL, Atty. Reg. #0071169, 35 East Gay Street, Suite 212, Columbus, Ohio 43215 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Sade Laster appeals from her conviction and sentence following a jury trial on
one count of misdemeanor assault. [Cite as State v. Laster, 2013-Ohio-621.] {¶ 2} In her sole assignment of error, Laster contends the trial court erred in failing
to provide a full transcript of proceedings below, including voir dire, rendering her unable to
pursue an appeal based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986).
{¶ 3} The record reflects that Laster was charged with assault for participating in an
attack on the victim, Chelsea Probert, by striking her in the face. The jury found Laster guilty.
The trial court imposed a 180-day jail sentence, gave Laster credit for nine days served, and
suspended the remaining 171 days subject to two years of community control with conditions.
The trial court suspended a $150 fine but imposed court costs.1 This appeal followed.
{¶ 4} After Laster filed her opening appellate brief complaining about the
absence of a transcribed voir dire, a supplemental transcript was filed. That transcript contains
the omitted voir dire. Upon receiving the new transcript, Laster filed a supplemental appellate
brief. Therein, she asserts that the new transcript “remains incomplete and does not contain
sufficient information” to enable her to pursue a purported Batson issue on appeal. More
specifically, Laster argues:
On page 44, after defense counsel and the prosecution have each
finished questioning the jury, the trial judge holds an unrecorded sidebar. Then
the trial judge begins dismissing jurors from the venire, and begins to seat the
jury. 1 A review of the trial court’s on-line docket suggests that Laster’s community control may have been terminated early. The trial court’s docket also reflects, however, that she never paid her court costs, which, with additional fees, now total $903.46. Because the court costs remain unpaid, Laster’s misdemeanor appeal is not moot despite her completion of community control and the absence of any other apparent collateral consequences stemming from her conviction. Cf. State v. Caudill, 2d Dist. Montgomery No. 24881, 2012-Ohio-2230, ¶9 (recognizing that a misdemeanor appeal is moot after the judgment has been voluntarily satisfied unless some collateral legal disability or loss of civil rights exists). 3
There is no record of any peremptory challenges, challenges for cause,
objections or arguments by either party recorded in the transcript of voir dire.
Only the questioning preliminary to the actual strikes [is] included, not the
strikes themselves nor what follows them.
However, we do know that some jurors are excused for cause or by
peremptory challenges. We know this because, when the trial judge seats the
jury, some jurors out of the first twelve are removed, and other jurors farther
down in the venire take their seats. Thus, juror number 16 moves to seat three,
juror number 21 moves to seat number 4, etc.
We have no way of knowing from the transcript whether the State
excused any black jurors for cause or by peremptory challenge, whether the
defense made any objection to such challenges, whether the state offered any
proper reasons for so doing, whether there were even any black jurors present
in the venire, whether the prosecutor struck a disproportionate number of
black jurors, etc.
(Appellant’s supplemental brief, pg. 4) (Emphasis added).
{¶ 5} Attached to Laster’s original appellate brief is an affidavit in which she avers
that her attorney objected to the removal of two out of three black potential jurors. The
affidavit does not say whether the two black potential jurors were removed for cause or with
peremptory challenges and does not specify whether her trial attorney’s purported objection
raised a Batson challenge. In the brief of the appellee, counsel for the state, who was also trial
counsel, denies that there was any Batson challenge and asserts that the appellant, seated close 4
to the jury, was not at, or able to hear the sidebar conferences anyway. In any event, based
upon appellant’s affidavit and the lack of a transcript reflecting what occurred when potential
jurors were stricken, Laster contends we must reverse her conviction and remand for a new
trial. In support, she reasons that we cannot know whether her rights were violated under
Batson and, as a result, that we cannot exclude the possibility of prejudicial error.
{¶ 6} Upon review, we find Laster’s argument to be unpersuasive. As an initial
matter, we cannot consider her affidavit, which was created after her appeal and was not part
of the record below. State v. Brown, 2d Dist. Clark No. 2009 CA 96, 2010-Ohio-4391, ¶9 fn.1;
State v. Mathers, 2d Dist. Clark No. 2000 CA 92, 2002-Ohio-4117, ¶8. Absent that affidavit,
Laster admits the record contains no evidence to support a Batson argument. The voir dire
transcript simply reflects the trial court excusing certain prospective jurors after counsel
completed questioning. (See Supplemental Tr. at 44-45). Any discussion about excusing the
prospective jurors apparently occurred at two unrecorded sidebars. (Id.).2
{¶ 7} Contrary to Laster’s argument, failure to record the two sidebars does not
require reversal. Although non-production of a complete record can require reversal of a
conviction, all reasonable solutions first must be exhausted without success. State v. Lewis, 2d
Dist. Montgomery No. 23850, 2011-Ohio-1411, ¶26. This includes resort to App.R. 9, which
“provides a process by which a statement of the evidence may be created to cure the defect of
the lack of an entire transcript, let alone individual defects.” Id. at ¶28. In particular, App.R.
9(E) contains procedures to correct the record if anything material is omitted. Moreover, under
2 The better practice would be for the trial court to record the sidebars, or, at some time and manner out of the jury’s hearing, at least the court and counsel should reiterate on the record what had occurred during unrecorded sidebars. 5
App.R. 9(C), Laster’s counsel could have prepared a statement of the unrecorded sidebars
“from the best available means” and submitted it to the trial court to settle any objections. Id.
Counsel also could have sought an agreed statement regarding what occurred at the sidebars.
Id. Input could have been acquired from trial counsel for the defendant and for the state, and
most importantly, from the trial court itself. Because Laster made no effort to reconstruct the
record under App.R. 9 to identify what occurred during the two sidebars, their failure to be
recorded does not constitute reversible error. State v. Goodwin, 84 Ohio St.3d 331, 340, 703
N.E.2d 1251 (1999) (recognizing “that reversal will not occur because of unrecorded * * *
sidebars where the defendant has failed to demonstrate that a request was made at trial or
objections were made, that an effort under App.R. 9 was made to reconstruct what occurred,
and that material prejudice resulted”).
{¶ 8} Finally, we note that absent evidence showing whether the venire contained
any black potential jurors, whether the State excused any black potential jurors, whether
defense counsel objected, or whether the State proffered a race-neutral reason for any strikes,
Laster cannot possibly prevail on a Batson argument on appeal—a fact she appears to concede.
{¶ 9} Based on the reasoning set forth above, we overrule Laster’s assignment of
error and affirm the judgment of the Dayton Municipal Court.
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
John J. Danish / Stephanie L. Cook Troy B. Daniels John Vogel 6
Hon. Deirdre E. Logan