State v. Ruggly

2022 Ohio 3730, 199 N.E.3d 180

• Court: Ohio Court of Appeals
• Decided: October 18, 2022
• Docket: 2022CA00065
• Status: Published

Opinion

[Cite as State v. Ruggly, 2022-Ohio-3730.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022CA00065 DAVID JUNIOR RUGGLY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2021CR2747

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 18, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE BERNARD L. HUNT Prosecuting Attorney 2395 McGinty Road, N.W. Stark County, Ohio North Canton, Ohio 44720

VICKI L. DESANTIS Assistant Prosecuting Attorney Appellate Division 110 Central Plaza South – Suite #510 Canton, Ohio 44702-1413 Stark County, Case No. 2022CA00065 2

Hoffman, P.J. {¶1} Defendant-appellant David Junior Ruggly appeals the judgment entered by

the Stark County Common Pleas Court convicting him of possession of a fentanyl-related

compound (R.C. 2925.11(A)(C)(11)(c)) and aggravated possession of drugs (R.C.

2925.11(A)(C)(1)(b)), and sentencing him to an aggregate term of 36 months

incarceration. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On December 17, 2021, Cheryl Desmond was working as a supervisor at

Community Restoration Center of Stark County (hereinafter “CRC”). CRC is a halfway

house located in Canton, Ohio. Appellant was a resident of CRC.

{¶3} Desmond was making her rounds of the halfway house by closed-circuit

television. The rooms all had a camera in them, and Desmond checked the rooms,

restrooms, doors, hallways, kitchen, and perimeter. The camera in Appellant’s room was

located right above Appellant’s bed. Desmond saw Appellant pull a plastic bag out of his

pockets, hold it up in the air, shake it, and pour something from the bag onto a DVD

player. Appellant then tore a piece of paper, poured the substance from the DVD player

into the paper, rolled the paper up as if he was rolling a marijuana joint, and handed the

rolled paper to the person in the bunk below Appellant. Appellant then reached back into

his pocket and began going through his wallet.

{¶4} While watching the screen, Desmond called her supervisor and described

what she was watching. Desmond’s supervisor told her to call the police.

{¶5} Detective Trey Schilling of the Canton Police Department responded to the

call. He went into Appellant’s room, and asked Appellant to come down from his top

bunk. As Appellant climbed down from the bunk, Det. Schilling saw Appellant toss Stark County, Case No. 2022CA00065 3

something from his hand onto the bed. Det. Schilling began searching through the

bedding for the item Appellant had discarded. While doing so, a clear baggy fell down

between the bed and the wall. The substance inside the baggy was tested and

determined to be fentanyl and methamphetamine.

{¶6} While at CRC, Det. Schilling viewed video from the closed-circuit television

of the purported drug transaction between Appellant and the other person in his room.

Although Det. Schilling was wearing a body camera, it did not capture what he viewed on

the closed-circuit television, nor was any video from the closed-circuit television produced

by the State.

{¶7} Appellant was indicted by the Stark County Grand Jury with one count of

possession of a fentanyl-related compound and one count of aggravated possession of

drugs. The case proceeded to jury trial in the Stark County Common Pleas Court.

{¶8} Appellant filed a motion in limine seeking to exclude testimony of witnesses

concerning what was on the video from the closed-circuit television, citing the best

evidence rule. The trial court found a video recording was either lost or was never

captured, and the State could present testimony concerning what Desmond and Det.

Schilling observed on the video.

{¶9} About two hours after the jury began deliberating, the jury notified the trial

court it was deadlocked. The trial court instructed the jurors it is their duty to decide the

case, and asked the jurors to re-examine their positions in an attempt to reach a verdict.

The jury resumed deliberations after lunch. At 1:15 p.m., the jury reported a question

from Juror No. 212. The question noted Juror 207 has anxiety over a past attack, and

the deliberations caused her anxiety to increase. Juror 207 indicated she did not feel Stark County, Case No. 2022CA00065 4

capable of coming to a decision, and requested an alternate take her place. During voir

dire, Juror 207 indicated she was the victim of a robbery in which there was a gun placed

to the back of her head, she was currently undergoing counseling for PTSD, and the

person who attacked her was never identified.

{¶10} The trial court discussed the situation with counsel, who agreed to the trial

court inquiring of the juror further regarding the cause of her anxiety. The trial court noted

for the record the juror was visibly shaking, and at one point in the questioning her body

went limp. The trial court asked both parties if they objected to bringing in the first

alternate, and both the State and Appellant indicated they had no objection.

Approximately half an hour after the alternate replaced Juror 207, the jury returned with

a verdict of guilty on both charges. The trial court sentenced Appellant to 36 months

incarceration on each count, to be served concurrently.

{¶11} It is from the April 22, 2022 judgment of conviction and sentence Appellant

prosecutes his appeal, assigning as error:

I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

FAILING TO CONDUCT AN INVESTIGATION INTO POTENTIAL JUROR

MISCONDUCT.

II. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING

TESTIMONY REGARDING THE CLOSED CIRCUIT TV VIDEO.

III. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE. Stark County, Case No. 2022CA00065 5

I.

{¶12} In his first assignment of error, Appellant argues the trial court erred in failing

to conduct an investigation into potential juror misconduct at the time it excused Juror 207

and replaced her with an alternate. Appellant argues because the previously-deadlocked

jury reached a decision approximately thirty minutes after the alternate replaced Juror

207, the trial court should have conducted an investigation into whether Juror 207 was

intimidated or pressured into returning a guilty verdict during deliberations.

{¶13} At the time the court questioned the juror and ultimately replaced her,

Appellant did not object to the manner in which the trial court handled the matter, and in

fact acquiesced in excusing the juror. However, after the jury’s verdict was read,

Appellant asked to have placed on the record the jury returned “rather quick” with a verdict

after the alternate was replaced. Tr. 187.

{¶14} A defendant's failure to raise a claim of juror misconduct until after trial,

when the issue of potential misconduct was known by the defendant during trial, amounts

to a waiver of the claim. State v. Mills, 9th Dist. Summit No. 21751, 2004-Ohio-1750, ¶ 4.

Although Appellant was not aware until after the verdict was rendered of the speed at

which the jury would reach a decision after the alternate stepped in, Appellant was aware

the jury had been deadlocked prior to the questioning of Juror 207, and also was aware

Juror 207 stated she did not feel capable of coming to a decision on the case. We find

the potential misconduct was known by Appellant at the time Juror 207 was questioned,

and his failure to object or request further investigation into whether Juror 207 was being

pressured in the jury room to reach a guilty verdict constitutes a waiver of the issue. We

therefore must find plain error in order to reverse. Stark County, Case No. 2022CA00065 6

{¶15} The Ohio Supreme Court has set forth the following standard of our review

of plain error:

Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

errors or defects affecting substantial rights” notwithstanding an accused's

failure to meet his obligation to bring those errors to the attention of the trial

court. However, the accused bears the burden to demonstrate plain error

on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Even if the error is obvious, it must have affected substantial rights,

and “[w]e have interpreted this aspect of the rule to mean that the trial

court's error must have affected the outcome of the trial.” Id. We recently

clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, that the accused is “required to demonstrate a reasonable probability

that the error resulted in prejudice—the same deferential standard for

reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶

22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124

S.Ct. 2333, 159 L.Ed.2d 157 (2004).

If the accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required

to correct it; we have “admonish[ed] courts to notice plain error ‘with the Stark County, Case No. 2022CA00065 7

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759

N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

{¶16} State v. Thomas, 152 Ohio St. 3d 15, 92 N.E.3d 821, 2017-Ohio-8011, ¶¶

32-34.

{¶17} The analysis of a case involving alleged juror misconduct requires a two-

tier inquiry. First, it must be determined whether there was juror misconduct. Second, if

juror misconduct is found, it must then be determined whether the misconduct materially

affected Appellant’s substantial rights. State v. Meeks, 5th Dist. Stark No. 2014CA00017,

2015-Ohio-1527, 34 N.E.3d 382, ¶ 115.

{¶18} We find Appellant’s claim of jury misconduct which led to the intimidation

and ultimate removal of Juror 207 is speculative at best. During voir dire, Juror 207

disclosed she had been robbed at gunpoint, and was in counseling for PTSD as a result.

The note sent to the judge from Juror 212 stated Juror 207 was experiencing anxiety and

did not feel she could reach a decision. When questioned, the trial court noted on the

record the juror was visibly shaking and at one point went limp on the stand. While the

record does indicate Juror 207 had difficulty reaching a verdict, the record does not

suggest she was a “hold-out” juror, or was being pressured by other jurors to reach a

guilty verdict. The juror had a pre-existing condition as a result of a criminal attack. The

record supports the trial court’s finding the juror was experiencing a medical issue as a

result of anxiety, and Appellant’s claim further questioning of this juror would have led to Stark County, Case No. 2022CA00065 8

a discovery of jury misconduct is speculative. We find Appellant has not demonstrated a

reasonable probability of a change in the outcome had the trial court inquired further into

the cause of Juror 207’s anxiety.

{¶19} The first assignment of error is overruled.

II.

{¶20} In his second assignment of error, Appellant argues testimony concerning

what witnesses observed on the video from CRC should have been excluded as violative

of the best evidence rule. Although not separately assigned as error as required by App.

R. 16(A)(7), he also argues the police body camera footage did not capture the closed-

circuit television video, police did not follow their own policy for preserving video evidence,

and the failure to preserve the video constituted bad faith.

{¶21} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St. 3d 269, 271, 569

N.E.2d 1056 (1991).

{¶22} Evid. R. 1002, Ohio’s “best evidence” rule, provides, “To prove the content

of a writing, recording, or photograph, the original writing, recording, or photograph is

required, except as otherwise provided in these rules or by statute enacted by the General

Assembly not in conflict with a rule of the Supreme Court of Ohio.”

{¶23} We find Desmond’s testimony regarding what she observed on closed-

circuit television does not implicate the best evidence rule. Her testimony was not

provided to prove the content of a video, but rather was testimony concerning what she

observed live and first-hand, via use of a closed-circuit television monitor. Likewise, Det. Stark County, Case No. 2022CA00065 9

Schilling’s testimony was not offered to prove the content of a recording, but rather was

testimony of what he actually observed on the television monitor, separate and apart from

whether a video was made or preserved.

{¶24} Appellant also argues the body camera “capture” of what Det. Schilling

observed on the closed-circuit television would have been an admissible duplicate of the

video. However, there is nothing in the record to demonstrate why this portion of the

body camera video was missing, or whether body camera video of Det. Schilling watching

the closed-circuit television ever existed. We find the trial court did not err in finding the

best evidence rule was not implicated by Det. Schilling’s testimony of his personal

observations of the closed-circuit television.

{¶25} Appellant also argues bad faith by Det. Schilling and the State in failing to

preserve video from the closed-circuit television. We note Appellant did not file a request

for discovery in the instant case, nor did he file a motion to preserve the video. In addition,

the record does not affirmatively demonstrate the existence of a video in the instant case.

{¶26} Further, assuming arguendo a video existed and was destroyed by the

State, the burden remains on Appellant to demonstrate the exculpatory nature of the

destroyed evidence. State v. Sharma, 5th Dist. Delaware No. 20CA110047, 2021-Ohio-

3436, ¶30. We find nothing in the record before this Court demonstrates if a video was

preserved of the closed-circuit television, the video was exculpatory in nature.

{¶27} The second assignment of error is overruled.

III.

{¶28} In his third assignment of error, Appellant argues his conviction was against

the manifest weight of the evidence. He specifically argues the testimony of Desmond Stark County, Case No. 2022CA00065 10

and Det. Schilling was contradictory regarding whether Det. Schilling viewed a video of

Appellant’s actions with the baggy, as observed by Desmond on closed-circuit television.

He also argues the body camera video does not show Appellant tossing a baggy on the

bed, nor does it show the baggy dropping to the lower bunk, as testified to by Det.

Schilling.

{¶29} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶30} Appellant was convicted of possession of a fentanyl-related compound and

aggravated possession of drugs in violation of R.C. 2925.11(A)(C)(1)(b) and R.C.

2925.11(A)(C)(11)(c):

(A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

(C) Whoever violates division (A) of this section is guilty of one of the

following:

(1) If the drug involved in the violation is a compound, mixture,

preparation, or substance included in schedule I or II, with the exception of

marihuana, cocaine, L.S.D., heroin, any fentanyl-related compound, Stark County, Case No. 2022CA00065 11

hashish, and any controlled substance analog, whoever violates division (A)

of this section is guilty of aggravated possession of drugs. The penalty for

the offense shall be determined as follows:

(b) If the amount of the drug involved equals or exceeds the bulk

amount but is less than five times the bulk amount, aggravated possession

of drugs is a felony of the third degree, and there is a presumption for a

prison term for the offense.

(11) If the drug involved in the violation is a fentanyl-related

compound and neither division (C)(9)(a) nor division (C)(10)(a) of this

section applies to the drug involved, or is a compound, mixture, preparation,

or substance that contains a fentanyl-related compound or is a combination

of a fentanyl-related compound and any other controlled substance and

neither division (C)(9)(a) nor division (C)(10)(a) of this section applies to the

drug involved, whoever violates division (A) of this section is guilty of

possession of a fentanyl-related compound. The penalty for the offense

shall be determined as follows:

(c) If the amount of the drug involved equals or exceeds fifty unit

doses but is less than one hundred unit doses or equals or exceeds five

grams but is less than ten grams, possession of a fentanyl-related

compound is a felony of the third degree, and there is a presumption for a

prison term for the offense. Stark County, Case No. 2022CA00065 12

{¶31} Appellant argues the testimony of the witnesses conflicted on whether

Desmond showed Det. Schilling the video footage from the closed-circuit camera when

he arrived at CRC. Det. Schilling testified he observed the footage. Desmond initially

testified she did not show police video of the footage; however, she later testified she did

show the officer the video, because she remembered pointing out the residue of what

appeared to be drugs on the DVD player in Appellant’s room. However, we find this

conflicting testimony is not material to any element of the offense, and the jury did not

lose its way in finding Appellant guilty despite Desmond’s difficulty recalling whether she

showed police the video.

{¶32} Appellant also argues Det. Schilling’s body camera footage did not show

Appellant tossing a baggy on the top bunk, nor does it show the baggy falling to the bottom

bunk where it was ultimately recovered by Det. Schilling. He argues the jury therefore

lost its way in believing Det. Schilling’s testimony regarding Appellant’s possession of the

baggy.

{¶33} While the video of Det. Schilling’s body camera was shown to the jury, Det.

Schilling explained the inability to see the baggy fall was caused by his height in

comparison to the height of the bed, and the fact he is leaning over searching for the

baggy, causing the video to be shot facing down. Tr. 106-107. However, he identified

the point in the video where he said, “There it is” as being the point where he saw the

baggy fall. Tr. 107. Det. Schilling also noted although the jury could not see Appellant

tossing the baggy on the body camera footage, Appellant’s entire body is not visible on

the footage, and further Det. Schilling is heard asking Appellant what he has tossed as

the detective approached. Tr. 115. We find the jury did not lose its way in believing the Stark County, Case No. 2022CA00065 13

testimony of Det. Schilling despite the fact the events he testified to were not fully captured

on the body camera footage.

{¶34} The third assignment of error is overruled. The judgment of the Stark

County Common Pleas Court is affirmed.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE

HON. CRAIG R. BALDWIN