[Cite as State v. Sales-Hilton, 2012-Ohio-5651.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26351
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE LATAYA SALES-HILTON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 07 1765
DECISION AND JOURNAL ENTRY
Dated: December 5, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Lataya Sales-Hilton (“Hilton”), appeals from her
convictions in the Summit County Court of Common Pleas. This Court reverses.
I
{¶2} Hilton and Cameron Murray had been dating for approximately four years and
would often spend nights together. According to Murray, he arrived at their apartment one
morning in July to find Hilton cutting his clothing with scissors. Murray testified that Hilton was
angry with him because he had stayed out all night. The two argued, and Murray grabbed Hilton
in an effort to stop her from cutting his clothing and to remove her from the room. Hilton
attempted to push Murray away and the two wrestled, causing them to fall to the floor. During
this fight, Murray sustained cuts and puncture wounds to his chest, arm, back, and leg. Murray
said that he was not aware of his injuries until he went downstairs and a roommate told him that 2
he was bleeding. After the roommate bandaged him, Murray left the house and called his mother
to come pick him up.
{¶3} When Murray’s mother arrived and saw his injuries, she called the police over his
objections. The police and the paramedics responded to the scene. Murray was uncooperative
and maintained that he did not want the police involved.
{¶4} Hilton was charged with (1) felonious assault in violation of R.C. 2903.11(A)(2),
a felony of the second degree, (2) domestic violence in violation of R.C. 2919.25(A), a
misdemeanor of the first degree, and (3) domestic violence in violation of R.C. 2919.25(C), a
misdemeanor of the fourth degree. The court issued a protection order prohibiting Hilton from
having any contact with Murray. According to Murray’s mother, she subsequently found Hilton
and Murray in bed together at her daughter’s house, and Hilton was charged with violating a
protection order in violation of R.C. 2919.27, a misdemeanor of the first degree.
Jury Empanelment
{¶5} The court conducted voir dire on Thursday, January 5, 2012. Several of the petit
jurors informed the court that they were available the next couple of days, but had schedule
conflicts with Monday. The court inquired as to whether the case might carry over until
Monday, to which the prosecutor responded, “for deliberations, possibly.” The court then
responded with promises that the trial would not carry over into Monday. Several prospective
jurors again expressed a concern about Monday, including Juror McBee who said, “I can’t miss
[any classes] at all. I’m in a doctoral program * * *.” The court then said, “Well, you know
what we’re going to do, we’re going to finish this by tomorrow, there is no question.” Out of the
prospective jurors that had informed the court of a scheduling conflict with Monday morning,
McBee was the only one empaneled. 3
{¶6} After the jury selection was complete, the court informed the attorneys that they
could not be in the courthouse late on Friday, and therefore, they should try the case in an
expeditious manner. The court further informed the jury that, due to the judge’s personal
schedule, the proceedings would adjourn at 3:30 p.m. on Thursday and begin again at 9 a.m. on
Friday.
Jury Instructions & Removal
{¶7} The jury returned to the courtroom the following morning and the trial proceeded.
Prior to lunch, after all of the testimony had been heard, the court passed out copies of the jury
instructions to the members of the jury and asked that they follow along as the court read them
aloud. After reading the instructions, the court released the two alternate jurors. Sometime
thereafter, the court realized it had omitted reading one paragraph of the instructions. The court
proceeded to read this portion of the instructions to the jury, on the record, in the jury room.
{¶8} After several hours of deliberations, the jury sent a question to the court inquiring
what it should do if it could not reach a verdict on two of the counts. The court issued a Howard
charge and ordered the jury to continue deliberations. However, because of the late hour, the
court dismissed the jury for the weekend. Juror McBee then reminded the court that she could
not return to court on Monday. After a very brief exchange between the court and McBee,
McBee confirmed that she would not return on Monday. The court then replaced McBee with
the first alternate.
Deliberations of New Jury
{¶9} The following Monday, the 11 original jurors and first alternate returned to the
courtroom. The court asked the foreman if it was his opinion that he could begin deliberations
anew and gave the jury four new, blank verdict forms. After several hours, the jury submitted a 4
question to the court indicating that the jury was at an impasse on one of the four counts. Over
objections by the State and Hilton, the court issued Howard and Allen charges and accepted the
partial verdict.
{¶10} The jury found Hilton guilty of felonious assault and violating a protection order
and not guilty of one domestic violence charge. The jury did not reach a verdict on the
remaining domestic violence charge, and the court granted the State’s motion to dismiss that
count. Hilton now appeals from her convictions and raises four assignments of error for our
review. To facilitate the analysis, we rearrange and consolidate some of the assignments of
error.
II
Assignment of Error Number One
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY IMPANELING AN ALTERNATE JUROR AFTER THE JURY HAD BEGUN THEIR DELIBERATIONS AND REACHED A PARTIAL VERDICT, THEREBY DENYING APPELLANT HER CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY DELIBERATION AND/OR JURY TRIAL IN VIOLATION OF THE U.S. CONSTITUTION AND THE OHIO CONSTITUTION.
{¶11} In her first assignment of error, Hilton argues that she was denied her right to a
fair trial when the court replaced an original juror with an alternate juror after deliberations had
begun and a partial verdict had been reached. Specifically, Hilton argues that the court’s
decision to replace the original juror was both contrary to law and an abuse of discretion because
“there was no ‘manifest necessity’ to replace the original juror.”
{¶12} R.C. 2945.29 permits a court to replace a juror with an alternate “[i]f, before the
conclusion of the trial, [the original] juror becomes sick, or for other reason is unable to perform
his duty * * *.” As of 2008, Crim.R. 24(G)(1) allows the court to replace a juror after 5
deliberations have begun. However, “[i]f an alternate replaces a juror after deliberations have
begun, the court must instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1).
{¶13} “This Court reviews the trial court’s decision to remove a juror for an abuse of
discretion.” State v. Veal, 9th Dist. No. 26005, 2012-Ohio-3555, ¶ 32. An abuse of discretion
means that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). In addition to an abuse of discretion, Hilton must
show that she was prejudiced by the court’s action. “Absent a record showing that the court
abused [its] discretion which resulted in prejudice to the defense, the regularity of the
proceedings is presumed.” State v. Brown, 2d Dist. No. 24541, 2012-Ohio-1848, ¶ 46.
{¶14} Late Friday afternoon, the jury submitted a question to the court asking “[w]hat
[they] should [] do if [they] [we]re ‘hung’ on two count[s].” The court provided a Howard
charge and decided to conclude deliberations for the day. The court asked the jury to decide
when they wanted to return on Monday morning. While several jurors expressed the desire to
continue deliberating in an effort to conclude the case that day, the court said that the courthouse
must be vacated no later than 5 p.m., and therefore, deliberations must be resumed on Monday.
Juror McBee then reminded the court that she could not return on Monday because her doctorate
program was scheduled to begin. The court had a brief discussion with the juror and confirmed
that she would not return to the courthouse on Monday. The court decided to replace Juror
McBee with the first alternate, and Hilton filed a written objection.
{¶15} Hilton argues that the court erred in replacing McBee because there was no
“manifest necessity” to do so. Hilton fails to point us to any case law in which “manifest
necessity” is the standard by which the court must determine whether to replace a juror. See
State v. Hopkins, 27 Ohio App.3d 196, 198 (11th Dist.1985) (manifest necessity is required to 6
dismiss entire jury and declare mistrial, but is not the standard to replace one juror with an
alternate). The crux of Hilton’s argument is that the juror’s excuse for why she could not return
on Monday was insufficient to warrant a discharge of her duties. However, Hilton overlooks
Juror McBee’s clear refusal to return to court on Monday to continue deliberations. This left the
court with little choice but to replace McBee with an alternate juror. The court’s decision to
replace the juror was an attempt to resolve the case in the most efficient manner and cannot be
said to have been arbitrary, unreasonable, or unconscionable. See Blakemore, 5 Ohio St.3d at
219.
Beginning Deliberations Anew
{¶16} “If an alternate replaces a juror after deliberations have begun, the court must
instruct the jury to begin its deliberations anew.” Crim.R. 24(G)(1). “The purpose of such
instruction is to negate any possibility of coercion or intimidation of the substitute juror.” State
v. Elersic, 11th Dist. Nos. 2000-L-062 & 2000-L-164, 2001 WL 1497192, *13, citing State v.
Miley, 77 Ohio App.3d 786, 791-793 (12th Dist.1991). Despite Hilton’s concession in her brief,
the transcript is clear that the court did not issue the required instruction. “Normally, this Court
would only consider issues that were raised on appeal; nonetheless, this Court does have
discretion to sua sponte notice plain error.” State v. McPherson, 9th Dist. No. 11CA0024-M,
2012-Ohio-859, ¶ 6.
{¶17} On Friday afternoon, the original jury reached verdicts on two of the counts and
asked the court “[w]hat [they] should [] do if [they] [we]re ‘hung’ on two count[s].” The jury
did not indicate which charges were resolved or what their verdicts were. The court responded
with a Howard charge and ordered the jury to continue deliberations on Monday. After Juror
McBee said that she would not return on Monday, the court replaced her with an alternate juror. 7
One of the other jurors then asked the court if they would have to start deliberations all over, to
which the court responded, “Yes, start all over on * * * all four of the counts, that’s correct.”
{¶18} On Monday morning, 11 of the original jurors plus the first alternate arrived in
court. The court verified that the alternate juror had not discussed the case with anyone and had
abided by the admonitions given, including not conducting any independent research. The court
then asked the foreperson: “is it your opinion that you can begin deliberations anew on these four
charges?” The foreman answered, “Yes.” This was the only time in which the trial court
addressed the issue of beginning deliberations anew in the presence of the alternate juror.
{¶19} While the court did order Friday’s verdict forms to be shredded and did give the
jury four new verdict forms, it, at no point, instructed the jury, with the alternate juror present,
that it must begin deliberations anew. We decline to presume that the jury understood that it
must begin deliberations anew from the court’s question to the foreman about whether, in his
opinion, he could begin deliberations anew. Under the circumstances of this case, the possibility
of prejudice was so great that Hilton was effectively denied her right to a fair jury trial. The
court’s failure to issue the instruction that the jury must begin deliberations anew is reversible,
plain error. See Elersic at *13.
{¶20} The court further erred in failing to read the complete jury instructions to the
alternate juror. Twelve jurors and two alternates were sworn in on Thursday morning, February
5, 2012. On Friday, the court read the instructions to the jury and then dismissed the alternate
jurors. Subsequently, the court realized it had skipped a portion of the jury instructions and went
to the jury room to read, on the record, the omitted language, which stated as follows:
You may not discuss or consider the subject of punishment. In the event you find the Defendant guilty, the duty to determine the punishment is placed, by law, upon the [c]ourt. 8
The court did not read these instructions to the alternate juror on Monday when it replaced the
original juror. We do note, however, that the jurors were given printed copies of the complete
instructions, and that during voir dire the prosecutor had mentioned that the jurors were not to
consider the subject of punishment.
{¶21} Because we reverse on the court’s failure to properly instruct the jury to begin
deliberations anew, we need not reach the issue of whether the court’s failure to read the entire
instructions to the alternate juror actually deprived Hilton of her constitutional right to a fair trial.
{¶22} Hilton’s first assignment of error is overruled, but her convictions are reversed
because the court committed plain error in failing to instruct the jury to begin deliberations anew.
Assignment of Error Number Four
THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIMINAL RULE 29 MOTION FOR ACQUITTAL.
{¶23} In her fourth assignment of error, Hilton argues that the court erred in denying her
Crim.R. 29 motion for acquittal because the State presented insufficient evidence to support her
convictions for felonious assault and violation of a protection order. We disagree.
{¶24} Hilton’s fourth assignment of error is not rendered moot by our conclusion to
reverse the matter because of a trial error. The Ohio Supreme Court has “distinguish[ed]
between appellate court reversals based solely upon insufficiency of the evidence and those
based on ordinary ‘trial errors.’” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 18.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution protect a criminal defendant from multiple prosecutions for a single offense. Accordingly, notwithstanding some procedural defect by the trial court warranting reversal, the state remains entitled to “one, and only one, full and fair opportunity” to prosecute the defendant in regard to a single offense. 9
State v. Vanni, 182 Ohio App.3d 505, 2009-Ohio-2295, ¶ 14 (9th Dist.), quoting Richardson v.
United States, 468 U.S. 317, 330 (1984). Therefore, the Double Jeopardy Clause does not
prevent a retrial of a case that was reversed based on trial error, provided the State presented
sufficient evidence to sustain a guilty verdict. Brewer at ¶ 17.
{¶25} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient to
support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997),
quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of
adequacy.” Thompkins at 386. When reviewing a conviction for sufficiency, evidence must be
viewed in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” Id.
{¶26} “Whether the evidence is legally sufficient to sustain a verdict is a question of
law.” Thompkins at 386, citing State v. Robinson, 162 Ohio St. 486 (1955). This Court,
therefore, reviews questions of sufficiency de novo. State v. Salupo, 177 Ohio App.3d 354,
2008-Ohio-3721, ¶ 4 (9th Dist.).
Felonious Assault
{¶27} A person is guilty of felonious assault if he or she knowingly causes or attempts
to cause physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). “A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause
a certain result or will probably be of a certain nature. A person has knowledge of circumstances
when he is aware that such circumstances probably exist.” R.C. 2901.22(B). A “‘[d]eadly 10
weapon’ means any instrument, device, or thing capable of inflicting death * * *.” R.C.
2923.11(A).
{¶28} Hilton does not make any argument that scissors fail to meet the definition of a
deadly weapon. See App.R. 16(A)(7). This Court has repeatedly held, “[i]f an argument exists
that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v.
Cardone, 9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Therefore, we limit our
review to the element of knowingly.
{¶29} Officer Ronald Kennedy, an Akron Police Officer who responded to the scene,
testified that Hilton told him that she grabbed scissors to defend herself and that Murray ran into
the scissors several times. However, Officer Kennedy attested that Murray’s injuries “didn’t
appear to be * * * defensive wounds,” explaining that if Hilton was trying to defend herself, he
would have expected Murray’s wounds to be “in one specific area of the body, [] not up and
down one side.” Officer Kennedy further testified that he was surprised at how calm Hilton was
and that in his experience victims are usually more emotional.
{¶30} Detective John Bell also spoke to Hilton at the scene. Hilton told Detective Bell
that she became very upset when Murray arrived home that morning. She had retrieved a pair of
scissors from a drawer in the hallway, returned to the room, and began cutting his clothing.
Murray had grabbed her in an effort to stop her from cutting his clothing, but she was able to pull
away. They argued for approximately 20 minutes and, at some point, she threw the scissors
causing the blades to break apart. Hilton said she picked up half of the broken scissors and the
two continued to argue. Murray grabbed Hilton again, trying to calm her down, and the two
struggled, wrestling to the floor. At some point thereafter, they realized Murray was bleeding 11
and the fight stopped. Hilton told Detective Bell that Murray was pretty upset and could not
believe that she had stabbed him.
{¶31} Heather Greathouse rented a room in the home in which the incident occurred.
Greathouse was downstairs with her mother when Murray arrived that morning. When she was
interviewed by the police, Greathouse said she saw Hilton cut Murray with the scissors.
However, at trial, Greathouse testified that she did not witness the incident, but instead remained
downstairs and was not aware of any trouble until Murray came downstairs bleeding.
Greathouse bandaged Murray’s wounds, and he left. When asked why her testimony was
inconsistent with her statements given to the police, she said that right after the incident she was
“shook[] up” and “just wanted [the police] to leave.”
{¶32} Viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact could have found the essential elements of felonious assault were proven beyond a
reasonable doubt. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus. The only witnesses
to the incident were Murray, Hilton, and Greathouse. The statements made to the police and the
testimony at trial allow for the conclusion that Hilton picked up the broken scissors with the
intention of keeping Murray from removing her from the room. Moreover, Hilton was aware
that she was holding the broken scissors when she began wrestling with Murray, and Officer
Kennedy testified that Murray’s injuries were inconsistent with Hilton’s version that she was
trying to defend herself. The State was not required to prove that Hilton had the intention of
causing harm, it was merely required to prove that Hilton was aware that her conduct would
probably cause a certain result. Thus, the State presented sufficient evidence to support all of the
elements of felonious assault, and the court did not err in denying Hilton’s motion for acquittal
on this charge. 12
Violation of Protection Order
{¶33} A person is guilty of violating a protection order if he or she “recklessly violate[s]
the terms of * * * a protection order issued * * * pursuant to [a charge of domestic violence] * *
*.” R.C. 2919.27(A)(1). “A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause a certain
result or is likely to be of a certain nature.” R.C. 2901.22(C).
{¶34} The court issued a temporary criminal protection order, pursuant to R.C. 2919.26,
on July 5, 2011. Cassandra Murray, Cameron Murray’s mother, testified that she was in court
with her son when the court informed Hilton that the protection order was in effect. Cameron
Murray also testified that he was present when the protection order was put into effect and
understood that it prohibited Hilton from having any contact with him.
{¶35} Mrs. Murray testified that on August 31, 2011, after the protection order had been
in place for nearly two months, she arrived at her daughter’s house and discovered Hilton and
Murray in bed together. Mrs. Murray called the police, but testified that Hilton left before they
arrived. Cameron Murray testified that Hilton was not there that morning and that his mother
called the police because the two of them were fighting.
{¶36} Viewing the evidence in a light most favorable to the prosecution, a reasonable
juror could have concluded that Hilton was aware of the protection order and was with Murray
that August morning. Thus, the State presented sufficient evidence to support the conclusion that
Hilton had violated the protection order, and the court did not err in denying her motion for
acquittal. Accordingly, Hilton’s fourth assignment of error is overruled. 13
Assignment of Error Number Two
THE TRIAL COURT COMMITTED PLAIN ERROR IN THE HANDLING OF ITS JURY PROCEDURE, THEREBY DENYING APPELLANT HER CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY DELIBERATION AND/OR JURY TRIAL IN VIOLATION OF THE U.S. CONSTITUTION AND THE OHIO CONSTITUTION.
Assignment of Error Number Three
THE TRIAL COURT’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶37} Hilton’s second and third assignments of error are rendered moot by our
conclusion to reverse the matter because of a trial error. We, therefore, decline to address them.
See App.R. 12(A)(1)(c).
III
{¶38} Hilton’s convictions are reversed because the court failed to instruct the jury to
begin deliberations anew when replacing a juror after deliberations had begun. Hilton’s first and
fourth assignments of error are overruled, and her remaining assignments of error are moot. The
judgment of the Summit County Court of Common Pleas is reversed, and the cause is remanded
for further proceedings consistent with the foregoing opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 14
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE FOR THE COURT
MOORE, J. CARR, J. CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.