[Cite as State v. Morgan,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97934

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

WALTER MORGAN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-544807

BEFORE: Celebrezze, J., Blackmon, A.J., and Sweeney, J.

RELEASED AND JOURNALIZED: October 25, 2012 ATTORNEY FOR APPELLANT

John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Louis J. Brodnik Marc D. Bullard Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Walter Morgan, asserts on appeal that a new trial is necessary

where multiple errors in procedure occurred in the jury instructions and jury deliberations

during his trial. He claims the trial court erred in giving a “Howard” charge when the

jury instructions and jury forms contained contradictory statements that caused the jury’s

inability to reach a unanimous verdict. After a thorough review of the record and law,

we affirm appellant’s convictions.

I. Factual and Procedural History

{¶2} On September 25, 2010, Markita McCrimon loaned her car, a Ford Focus, to

appellant at approximately 7:00 p.m. Between 7:00 and 7:30 p.m., Officer Kenneth

Wohlheter of the Cleveland Metropolitan Housing Authority (“CMHA”) observed a Ford

Focus run a stop sign. The officer attempted to pull the car over by activating his lights

and siren. Officer Wohlheter testified the car did not stop, but continued on for

approximately one mile at speeds of 35 to 40 miles per hour. During the chase, Officer

Wohlheter observed the driver of the car throw a baseball-sized object out the passenger

window. The chase ended abruptly when the driver of the car slammed on the brakes,

put the car in park, opened the door, and fled. {¶3} Officer Wohlheter testified he saw the driver clearly as the driver exited the

vehicle and looked back at him. He testified that he got a good look at the driver and

later identified appellant as the driver of the car.

{¶4} Officer Wohlheter and his partner, Officer Michael Jones, gave chase but

were unsuccessful in apprehending the driver of the car. He did, however, find an

insurance card and a receipt in the glove box that led them to McCrimon.

{¶5} Officer Wohlheter also testified that he had broadcast the location of the item

the driver had thrown out the window during the case. He went back to this location

after the search for the driver ended and met CMHA Officer Kenneth Lundy, who

testified he retrieved a plastic baggie containing approximately 38 grams of crack cocaine

at the location Wohlheter had broadcast.

{¶6} Appellant was eventually tracked down and, on December 22, 2010, he was

arraigned and charged with one count of drug trafficking, in violation of R.C.

2925.03(A)(2) (Count 1); one count of drug possession, in violation of R.C. 2925.11(A)

(Count 2); one count of tampering with evidence, in violation of R.C. 2921.12(A)(1)

(Count 3); and one count of failure to obey the order or signal of a police officer, in

violation of R.C. 2921.331(B) (Count 4). A jury trial commenced on December 6, 2011.

At the end of the state’s case, the trial court partially granted appellant’s Crim.R. 29

motion by amending Count 4 to a lesser included offense of failure to comply, in

violation of R.C. 2921.331(A). {¶7} At the end of closing arguments, without objection, the court adjourned

without instructing the jury because it was late in the day. The jury instructions were

given first thing in the morning on December 8, 2011, and the jury set about deliberating.

The jury addressed several questions to the judge. Twice the jury asked to see a police

report, marked as Defense Exhibit B, that appellant’s attorney used in the

cross-examination of Officer Wohlheter and in the direct examination of Officer Jones.

The police report was prepared by Officer Jones and contained statements made by

Officer Wohlheter. Appellant had asked that it be admitted, but the trial court denied

that request. The trial court informed the jury that the report was not admitted and would

not be provided.

{¶8} The jury indicated three times that they were at an impasse and specifically

mentioned Counts 1, 2, and 3. On December 9, 2011, after the third time, the trial court

gave the jury a supplemental “Howard” instruction1 without objection from appellant or

the state. The jury later pointed out that the verdict form for Count 2, drug possession,

may be incorrect. The court examined the forms on the record and found that the jury

instructions were correct, but that page two of the verdict form for drug possession — the

finding of the amount of drugs involved — incorrectly referred to a finding of guilt for

drug trafficking when it should have referred to drug possession. The court corrected

this page and sent the jury back to deliberate.

1 State v. Howard,

,

(1989). {¶9} The jury reached a verdict later that day finding appellant not guilty of drug

trafficking, but guilty of drug possession in an amount greater than 25 grams but less than

100 grams of crack cocaine. The jury also found appellant guilty of tampering with

evidence and failure to obey the order or signal of a police officer. The trial court

referred appellant for a presentence investigation report, and sentencing was set for

January 12, 2012. On that date, appellant was sentenced to a five-year prison term for

drug possession, to be served concurrently to a one-year term for tampering with

evidence, but consecutively to a six-month term for failure to comply, for an aggregate

term of five years and six months. The trial court then properly informed appellant of

postrelease control.

{¶10} Appellant timely filed an appeal from these convictions, raising a single

assignment of error: “The trial court committed multiple instances of plain error by

submitting confusing responses to jury questions and by delivering an unnecessary and

unwarranted Howard charge and by amending the jury instructions and verdict forms

when an error became apparent in jury deliberations.” II. Law and Analysis

{¶11} Appellant relies on this court’s ability to recognize plain error, pursuant to

Crim.R. 52(B) and App.R. 12(A), to seek a new trial. To constitute plain error, the error

must be obvious on the record, palpable, and fundamental, so that it should have been

apparent to the trial court without objection. See State v. Tichon,

,

(9th Dist. 1995). Moreover, plain error does not exist unless the

appellant establishes that the outcome of the trial clearly would have been different but

for the trial court’s allegedly improper actions. State v. Waddell,

,

,

. Notice of plain error is to be taken with utmost

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of

justice. State v. Phillips,

,

,

.

{¶12} Appellant’s single assignment of error includes several allegations of error.

He first argues the trial court’s responses to jury questions were confusing.

A. Admittance of Evidence

{¶13} The jury requested to see the police report authored by Officer Jones,

labeled as Defense Exhibit B. The trial court responded “[n]o.” The jury again

requested to see the report and included page 11 of the jury instructions, which stated that

the jury would be provided all evidence admitted at trial.2 The court responded that the

report was not admitted and would not be provided. Appellant argues the trial court

2 The jury also asked other questions not pertinent here, including how it should handle the order of the charges and whether they had to reach a consensus on all counts or consider them individually. should have supplied the jury with the report. However, the court excluded it from

evidence without objection from appellant. Appellant now argues this was error. This

appears to be a collateral attack on the decision of the trial court to deny appellant’s

request to admit the police report as substantive evidence at the close of his case.

{¶14} The introduction of evidence at trial falls within the sound discretion of the

trial court. Evid.R. 104; State v. Heinish,

,

(1990).

A trial court abuses its discretion when it acts in an unreasonable, arbitrary, or

unconscionable manner. A reviewing court should not substitute its judgment for that of

the trial court. See generally State v. Jenkins,

,

(1984).

{¶15} Appellant was using the police report to cross-examine the state’s witnesses

in an effort to discredit Officer Wohlheter’s identification of him. Appellant attempted to

use the report as a prior inconsistent statement to show that Officer Wohlheter could not

identify him. This is allowed by Evid.R. 613. However, it constitutes extrinsic evidence

of a prior statement. Extrinsic evidence is not admissible under Evid.R. 613(B) unless a

proper foundation for its admission is set forth.

[A] foundation must be established through direct or cross- examination in which: (1) the witness is presented with the former statement; (2) the witness is asked whether he made the statement; (3) the witness is given an opportunity to admit, deny or explain the statement; and (4) the opposing party is given an opportunity to interrogate the witness on the inconsistent statement.

State v. Theuring,

,

(1st Dist. 1988). {¶16} Appellant was permitted to cross-examine Officer Wohlheter using the

report and insinuated that contradictions existed between his in-court testimony and

statements in the report. Appellant was using the report consistent with impeachment

evidence, ostensibly under Evid.R. 613, but according to Officer Wohlheter’s testimony,

it was not a prior inconsistent statement. The report was silent on whether Officer

Wohlheter had seen appellant’s face. Officer Wohlheter testified he informed Officer

Jones that he got a good look at the driver before Officer Jones wrote the report. The

police report did not have a contradictory statement to Officer Wohlheter’s testimony.

The report was silent on this point.

{¶17} Further, appellant never objected to the exclusion of the police report or

argued any justification for its admittance as substantive evidence. The police report

may have been admissible under Evid.R. 803(8). This rule excludes out-of-court

statements from being classified as hearsay where the statements are

[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.

However, appellant never laid a proper foundation for admission of the report under

this hearsay exception. He failed to establish that the police report was generated

pursuant to any duty imposed by law. He questioned Officer Jones to establish that Officer Jones wrote the report, but did not question him regarding any obligation. State

v. Wilson, 8th Dist. No. 87205,

.

{¶18} Therefore, the trial court could properly exclude the report from being

admitted as substantive evidence where appellant advanced none of these theories for its

admittance at the appropriate time. Because the report was not admitted, the court did

not commit plain error when it did not provide it to the jury when it was requested.

B. The Howard Charge

{¶19} Next, appellant argues that the trial court erred by delivering a Howard

charge when the jury appeared deadlocked. Where it appears to a trial court that a jury is

incapable of reaching a consensus, the court, in its discretion, may make a last-ditch effort

to prod the jury into reaching a unanimous verdict so long as its instructions are balanced,

neutral, and not coercive. Howard,

,

. Rejecting

other alternatives, the Ohio Supreme Court dictated the instruction to be given:

The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another’s arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors.

at paragraph two of the syllabus.

{¶20} “Whether a jury is irreconcilably deadlocked is a ‘“necessarily discretionary

determination’” for the trial court to make.” State v. Gapen,

,

,

, ¶ 127, quoting State v. Brown,

,

,

, ¶ 37, quoting Arizona v. Washington,

,

,

(1978), fn. 28.

{¶21} The trial court gave the Howard instruction after the jury had three times

indicated they were deadlocked and after a full day-and-a-half of deliberations. Other

courts have upheld the issuance of a Howard charge after shorter periods of time where

the jury appeared deadlocked. State v. Rhines, 2d Dist. No. 24417,

(charge issued after 11 hours of deliberations); State v. McDowell, 10th Dist. No.

10AP-509,

(charge given after jury deliberated one-and-a-half days);

State v. Shepard, 10th Dist. No. 07AP-223,

(citing cases where the

charge has been upheld after only a few hours of deliberations). Given the statements

from the jury, that deliberations were becoming uncomfortable where it was merely

rehashing the same arguments over and over, the trial court could properly determine that

the jury was deadlocked. {¶22} The trial court did not commit error, let alone plain error, by giving a

Howard instruction in this case where the jury indicated it was deadlocked after

significant deliberations.

C. Amendment of Jury Instructions and Verdict Forms

{¶23} Finally, appellant asserts that the trial court erred by amending the jury

instruction and verdict forms and that these errors meant the jury truly was not

deadlocked, and thus the Howard charge was inappropriate.

{¶24} It must first be noted that there were no errors in the jury instructions at the

time the Howard charge was given. An error in the jury instructions was noticed by the

state at the time the jury was initially charged, and the court modified the instructions

accordingly. At the time the Howard charge was given, the jury instructions were

correct.

{¶25} There was, however, a clerical error on the second page of the verdict form

for the amount of drugs involved in the count of drug possession. The form indicated that

if the jury found the defendant guilty of drug trafficking, it should then indicate the

amount of controlled substance involved. The form should have stated that if the jury

found the defendant guilty of drug possession, it should then indicate the amount

involved. This error had no impact on the jury’s deliberations because it related only to

the amount involved and would only be addressed after the jury reached consensus on

guilt for drug possession. {¶26} Because the jury indicated in written questions to the court that it could not

reach a unanimous verdict on Counts 1, 2, and 3, this error likely had no impact on

deliberations. Therefore, the trial court did not commit plain error in correcting the jury

verdict form or in giving a Howard instruction prior to correcting the form. The error in

the verdict form for Count 2 had little or no impact on the jury’s impasse and no impact

on the court’s decision to give the Howard charge.

III. Conclusion

{¶27} The trial court did not commit plain error when it gave the jury a Howard

charge when the jury indicated it was truly deadlocked. Appellant’s argument that the

jury was not deadlocked, but was confused by errors in the jury instructions and verdict

forms is not persuasive. The jury instructions were correct, and a minor error in the

verdict form did not cause the jury’s impasse. Further, the trial court’s answers to jury

questions were proper. The evidence that appellant argues should have been provided to

the jury was excluded as substantive evidence. Therefore, the trial court’s responses to

the jury were correct.

{¶28} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, A.J., and JAMES J. SWEENEY, J., CONCUR