[Cite as State v. Bracone,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2013 AP 11 0046 PAUL L. BRACONE, JR.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2013 CR 07 0141

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 16, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PATRICK J. WILLIAMS JASON L. JACKSON ASSISTANT PROSECUTOR FITZPATRICK, ZIMMERMAN & ROSE 125 East High Avenue Post Office Box 308 New Philadelphia, Ohio 44663 Uhrichsville, Ohio 44683 [Cite as State v. Bracone,

.]

Wise, J.

{¶1} Appellant Paul L. Bracone, Jr. appeals his conviction and sentence

entered in the Tuscarawas County Court of Common Pleas following a jury trial.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On March 27, 2011, Emily Bracone was at home where she resided with

her father, Defendant-Appellant Paul Bracone. (T. at. 238). She was looking for a video

that she was downloading for school on her father's laptop. (T. at 240). The laptop was

password protected.

{¶4} While looking for her video, Emily observed thumbnail pictures of a

woman with a tattoo on her upper thigh, which was identical to her mother’s tattoo. The

thumbnail appeared to be of a video taken in her mother's (Beth Evans') bathroom

located at 217 ½ Grant Street, Dennison, Ohio. Beth Evans rented the apartment from

Appellant. (T. at 241).

{¶5} Emily Bracone contacted her mother and indicated they needed to talk.

She then met her mother and her mother’s boyfriend at her mother’s apartment. (T. p.

241-242). Upon searching, they located a small camera that had been placed behind a

panel in the vanity and was pointed at the shower. There was a small hole in the panel

for the camera lens and two screws that were attached to a housing that held the

camera in place. (T. at 242- 243, 263- 264). Upon finding the camera, Beth Evans and

Emily Bracone contacted the Dennison Police Department. (T. at 243, 264). Patrolman

Matt Grezlik came and removed and secured the camera (T. at 264, 300-303).

Patrolman Grezlik also photographed the closed circuit camera. Tuscarawas County, Case No. 2013 AP 11 0046 3

{¶6} Patrolman Grezlik contacted the Prosecutor's Office and obtained a

search warrant for Paul Bracone's residence on North Second Street Extension in

Dennison. (T. at 303-304). The search warrant was executed and the following items of

significance were seized:

{¶7} 1) Desktop computer, bearing serial number BR59501 from Appellant's

bedroom. (T. at 304);

{¶8} 2) Various items of pornography and sex toys (T. at 305);

{¶9} 3) Appellant's laptop bearing serial number JPK84J1 which was located

on a night stand in the living room, roughly ten feet from Appellant's bedroom (T. at

306). This was the laptop upon which Emily Bracone saw the tell-tale tattoo; and

{¶10} 4) Emily Bracone's desktop located in her bedroom bearing serial number

27950F1. (T. at 300-301).

{¶11} All of the computers and multimedia devices were placed in evidence.

They were secured for processing by B.C.I.& I. (T. at 307). Appellant was then asked to

go to the Dennison Police Department, where he was interviewed. The interview was

recorded. (T. at 311). Significantly, Appellant admitted that he set up the video camera

under the sink, though he indicated he did so to obtain audio of cocaine usage. (T. at

315-317). He also admitted that he knew Beth Evans' twelve year old daughter, Baleigh,

showers in the bathroom. Appellant admitted to seeing videos of Beth Evans taken with

the camera. (T. at 331).

{¶12} Appellant denied having any child pornography. (T. at 324). He admitted

to watching a memory card's worth of video from the camera. (T. at 337). He claimed to

have deleted videos of nudity. (T. at 338). Eventually, the focus of the investigation Tuscarawas County, Case No. 2013 AP 11 0046 4

turned to a marijuana grow operation located behind Beth Evans residence at 217 Grant

Street, Dennison, Ohio. Bracone admitted he had an active growing operation, claiming

to have only ten plants. (T. at. 340).

{¶13} Appellant gave consent to search the premises located at 217 Grant

Street, Dennison, Ohio. (T. at 346). Consent was also obtained from the titled owner,

Lucille Bracone. (T. at 346).

{¶14} Upon entering 217 Grant Street, Dennison, Ohio, an elaborate indoor

grow operation was found, along with the receiver for the closed-circuit camera. (T. at

348). There was a room dedicated to smaller plants, a room for medium plants, and a

room for large plants. (T. at 349). There was a grow table, hydroponic watering power

converter systems, reflective wall covering and grow lights. (T. at 349-357).

{¶15} The marijuana and grow paraphernalia was photographed and placed in

the Dennison Police Department's evidence room. (T. at 358-360). The marijuana was

cut and hung before being analyzed by B.C.I. & I. (T. at 360).

{¶16} The computers were taken to B.C.I. & I. for processing by computer

forensic specialist Joann Gibb. Ms. Gibb analyzed Appellant’s desktop computer, serial

number BR59501. She analyzed two hard drives from the desktop. There were one

hundred six (106) items found indicative of child pornography. Among them were the

following:

{¶17} 1) "11 yo girl rides the cock and loves it kiddy porn incest sex naughty little

girl slut priceless pu.mpg."

{¶18} 2) "pedo anal;"

{¶19} 3) Photos of a young girl; Tuscarawas County, Case No. 2013 AP 11 0046 5

{¶20} 4) "Kelly's firstfuck;"

{¶21} 5) "pedo x sexo anal15 anos."

{¶22} In each instance, the videos or photos had specific identifiers that were

indicative of child pornography. (T. at 437-445). Further, there was a link file for "pedo x

sexo anal15 anos" to PJ's Recents. The Appellant's nickname is PJ. (T. at 260). His

user name on his laptop was also PJ. (T. at 256). There were also numerous child porn

indicative links on the desktop hard drives. (T. at 451-454).

{¶23} Ms. Gibb also processed Appellant’s laptop, serial number JPK8YJ1. On

that laptop the bathroom videos were found. She found 163 videos, 132 of which had

some sort of nudity. (T. at 456). Included among those videos were 22 videos of a

young child using the shower. (T. at 457). All of these images were saved in a folder

called "PJ". (T. at 457). Ms. Evans identified each of the shower videos of the young

female as being videos of her daughter Baleigh Evans (DOB: 5/21/1999). The videos

appeared to have been taken on September 21, 2010, September 24, 2010, October

12, 2010, November 25, 2010, and November 29, 2010. The videos show Baleigh

Evans (age eleven) in various states of undress. In all clips identified by Ms. Evans,

Baleigh Evans (age 11) was undressed and the camera was focused on her genitalia

and/or buttocks. (T. at 265-275).

{¶24} On the laptop, there also were videos of a young girl masturbating

("ten_yr_old_orgasm") and a video of a young girl performing oral sex on an adult male

("3rage). (T. at 466-467). Tuscarawas County, Case No. 2013 AP 11 0046 6

{¶25} Ms. Gibb also processed the computers found in Emily Bracone's room.

Significantly there was nothing of evidentiary value found on these computers (T. at

454-455).

{¶26} Jennifer Acurio, a forensic scientist in the drug chemistry division of B.C.l.

& l., analyzed the marijuana seized from Appellant's grow room. She performed a

microscopic test and a color test on the items, submitted. (T. at 523-524, 526). She

concluded that the items submitted were, in fact, marijuana. (T. at 526). She testified

that the marijuana was properly dried and cut. (T. at 528-529). After analyzing the

substance, Ms. Acurio prepared a report, and the weight of the marijuana submitted

was 1950 grams.

{¶27} On July 2, 2013, based upon the above evidence, the Tuscarawas County

Grand Jury returned a nine-count indictment against Appellant Paul A. Bracone, Jr.

Count one alleged one count of pandering obscenity involving a minor in violation of

R.C. §2907.32(A)(5), a felony of the fourth degree. Count two alleged a count of illegal

use of a minor in nudity oriented material in violation of R.C. §2907.323(A)(1), a felony

of the second degree. Counts three through seven alleged violations of R.C.

§2907.08(C), voyeurism, felonies of the fifth degree. Count eight alleged illegal

cultivation of marijuana in violation of R.C. §2925.04(A), a felony of the third degree.

Count nine alleged one count possession of drugs (marijuana) in violation of R.C.

§2925.11(A)(C)(3)(c), also a felony of the third degree.

{¶28} The matter proceeded to trial from September 10, 2013 through

September 16, 2013. Following deliberations, the jury found Appellant guilty of counts

one, two, eight, and nine. The jury was deadlocked on the voyeurism counts set forth in Tuscarawas County, Case No. 2013 AP 11 0046 7

counts three through seven. The jury was discharged and the matter was set for

sentencing on October 29, 2013.

{¶29} Appellant failed to appear at the sentencing hearing on October 29, 2013.

A warrant was issued but later withdrawn when it was learned that Appellant had health

issues.

{¶30} The matter was rescheduled for October 31, 2013. Appellant appeared for

sentencing on that date. Appellant was sentenced to eighteen (18) months on count

one, pandering obscenity involving a minor in violation of R.C. §2907.321, a felony of

the fourth degree. He was also sentenced to a four (4) year concurrent term for count

two, illegal use of a minor in nudity oriented material of performance in violation of R.C.

§2907.323(A)(1), a felony of the second degree.

{¶31} Regarding counts eight and nine, the State elected to proceed to sentence

on count eight, illegal cultivation of marijuana in violation of R.C. §2907.05, a felony of

the third degree. Appellant was sentenced to a three (3) year term to be served

consecutive to the aggregate four year term imposed for counts one and two. This

sentence was reserved in favor of three years community control to begin upon

Appellant's release from the Ohio Department of Rehabilitation and Correction after

serving the aggregate four year term imposed on counts one and two.

{¶32} Counts three through seven were dismissed without prejudice upon

Motion of the State. Said Motion was made on the basis that, under the "same acts

test," counts three through seven would merge into count two for purposes of

sentencing. Appellant was labeled a Tier II sex offender. He was informed of his duties

under law. Tuscarawas County, Case No. 2013 AP 11 0046 8

{¶33} All of the above was journalized by the Tuscarawas County Court of

Common Pleas by Judgment Entry filed on November 4, 2013.

{¶34} It is from this conviction and sentence Appellant now appeals, assigning

the following errors for review:

ASSIGNMENTS OF ERROR

{¶35} “I. THE CONVICTIONS OF PAUL BRACONE, JR., WERE AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE

{¶36} “II. THE COURT ERRED IN OVERRULING THE MOTION IN LIMINE TO

EXCLUDE EVIDENCE OF OTHERWISE LEGAL PORNOGRAPHY.

{¶37} “III. THE COURT ERRED IN INCLUDING THE PLAINTIFF'S WITNESSES

AS EXPERTS WHEN READING THE EXPERT INSTRUCTION TO THE JURY.

{¶38} “IV. THE COURT ERRED IN NOT PROVIDING NOT GUILTY PLEA

VERDICT FORMS TO THE JURY ON THE MARIJUANA CHARGES.”

I.

{¶39} In his First Assignment of Error, Appellant claims that his convictions were

against the manifest weight of the evidence. We disagree.

{¶40} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine “whether in resolving conflicts in the 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. Martin,

(1st

Dist. 1983). See also, State v. Thompkins,

, 1997–Ohio–52. The Tuscarawas County, Case No. 2013 AP 11 0046 9

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.”

.

{¶41} Appellant was convicted of the following offenses:

{¶42} (Count One): Pandering obscenity involving a minor, in violation of R.C.

2907.32(A)(5), which provides:

{¶43} “(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

{¶44} “ ***

{¶45} “(5) Buy, procure, possess, or control any obscene material with purpose

to violate division (A)(2) or (4) of this section.”

{¶46} (Count Two): Illegal use of a minor in nudity oriented material or

performance, in violation of R.C. 2907.323(A)(1), which provides

{¶47} “(A) No person shall do any of the following:

{¶48} “(1) Photograph any minor who is not the person's child or ward in a state

of nudity, or create, direct, produce, or transfer any material or performance that shows

the minor in a state of nudity, unless both of the following apply:

{¶49} “(a) The material or performance is, or is to be, sold, disseminated,

displayed, possessed, controlled, brought or caused to be brought into this state, or

presented for a bona fide artistic, medical, scientific, educational, religious,

governmental, judicial, or other proper purpose, by or to a physician, psychologist,

sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian,

member of the clergy, prosecutor, judge, or other person having a proper interest in the

material or performance; Tuscarawas County, Case No. 2013 AP 11 0046 10

{¶50} “(b) The minor's parents, guardian, or custodian consents in writing to the

photographing of the minor, to the use of the minor in the material or performance, or to

the transfer of the material and to the specific manner in which the material or

performance is to be used.”

{¶51} (Count Eight): Illegal manufacture of controlled substance or cultivation of

marihuana, in an amount exceeding 1000 grams but less than 5000 grams, in violation

of R.C. 2925.04(A), which provides:

{¶52} “(A) No person shall knowingly cultivate marihuana or knowingly

manufacture or otherwise engage in any part of the production of a controlled

substance.

{¶53} “ ***

{¶54} (5) If the drug involved in the violation is marihuana, the penalty for the

offense shall be determined as follows:

{¶55} “ ***

{¶56} (d) If the amount of marihuana involved equals or exceeds one thousand

grams but is less than five thousand grams, illegal cultivation of marihuana is a felony of

the third degree or, if the offense was committed in the vicinity of a school or in the

vicinity of a juvenile, a felony of the second degree, and division (C) of section 2929.13

of the Revised Code applies in determining whether to impose a prison term on the

offender.”

{¶57} (Count Nine): Drug Possession (marijuana), in violation of R.C.

2925.11(A)(C)(3)(c), which provides: Tuscarawas County, Case No. 2013 AP 11 0046 11

{¶58} (A) No person shall knowingly obtain, possess, or use a controlled

substance or a controlled substance analog.

{¶59} “***

{¶60} (C) Whoever violates division (A) of this section is guilty of one of the

following:

{¶61} “ ***

{¶62} (3) If the drug involved in the violation is marihuana or a compound,

mixture, preparation, or substance containing marihuana other than hashish, whoever

violates division (A) of this section is guilty of possession of marihuana. The penalty for

the offense shall be determined as follows:

{¶63} “***

{¶64} (c) If the amount of the drug involved equals or exceeds two hundred

grams but is less than one thousand grams, possession of marihuana is a felony of the

fifth degree, and division (B) of section 2929.13 of the Revised Code applies in

determining whether to impose a prison term on the offender.”

{¶65} Count One – Pandering obscenity involving a minor

{¶66} The evidence provided at trial in support of this charge was found on

Appellant’s laptop computer and desktop computer. Testimony was presented that the

desktop computer was located in Appellant’s bedroom, had been there for

approximately ten to eleven years, and that he was the sole user of said computer. (T.

at 244-245). Similar testimony was presented that Appellant was the owner of the

laptop, that he was the primary user and that the laptop was password protected. (T. at

243-244). Tuscarawas County, Case No. 2013 AP 11 0046 12

{¶67} Testimony and evidence was presented that the desktop contained 106

items of child pornography. Five of these videos/photographs were presented to the

jury. Each of these items contained identifiers associated with child pornography. (T. at

437-445). Further, one of the photographs contained a link file to “PJs recents”.

Appellant’s nickname was PJ and his user name on his laptop was “PJ”. (T. at 256,

260).

{¶68} Additional testimony was presented as to two videos of child pornography

found on Appellant’s laptop computer. These two videos were saved in a file labeled as

“PJ” which also contained the shower videos taken in Beth Evans’ bathroom. (T. at

457).

{¶69} Count Two – Illegal use of a minor in nudity oriented material or

performance.

{¶70} In support of this charge, the State provided testimony and evidence that

Appellant recorded eleven year old Baleigh Evans in a state of nudity. Appellant

admitted that he installed the hidden camera in Beth Evans’ bathroom. (T. at 315-317).

While Appellant asserted that he deleted any videos containing nudity, the evidence

showed that 132 videos downloaded to his computer contained nudity and 22 of those

were of Baleigh Evans, the focus of which was her genitalia or buttocks. (T. at 265-275).

{¶71} Count Eight – Illegal Cultivation of Marijuana and Count Nine –

Possession of Drugs (Marijuana)

{¶72} Patrolman Matt Grezlik testified as to the sophisticated marijuana grow

operation found on Appellant’s property. (T. at 358-360). He testified that he took

photographs of the evidence and then seized and stored same in the evidence room at Tuscarawas County, Case No. 2013 AP 11 0046 13

the Dennison Police Department.

These photographs were admitted as evidence.

Additionally, the marijuana was dried and cut and sent to B.C.I. & I. for analysis. (T. at

360).

{¶73} Jennifer Acurio of B.C.I. & I. testified that she analyzed the substance

submitted to her and found it to be marijuana. (T. at 523-526). She further testified that

the weight of the marijuana submitted was 1950 grams.

{¶74} Furthermore, Appellant admitted that he had an indoor grow operation at

his property on Grant Street. (T. at 340). Both he and his mother executed consent and

search forms. (T. at 346).

{¶75} Upon review, we find the testimony and exhibits support the findings of

guilty on all counts, and find no manifest miscarriage of justice.

{¶76} Appellant’s First Assignment of Error is overruled.

II.

{¶77} In his Second Assignment of Error, Appellant claims the trial court erred in

overruling his motion in limine regarding his possession of legal pornography. We

disagree.

{¶78} At trial, Appellant made a motion in limine to exclude the mention or

introduction of any pornographic materials located on Appellant’s computers which did

not contain minors. The trial court denied the motion and admitted such evidence over

objection. (T. at 225).

{¶79} Pursuant to Evid.R. 401, relevant evidence means evidence having any

tendency to make the existence of any fact that is of consequence to the determination Tuscarawas County, Case No. 2013 AP 11 0046 14

of the action more probable or less probable than it would be without the evidence.

Evid.R. 402 provides that evidence which is not relevant is not admissible.

{¶80} An appellate court must afford the trial court broad discretion in

determining the admissibility of evidence. State v. Maurer (1984),

,

; State v. Awkal (1996),

,

. The trial court's decision in this regard may not be disturbed on appeal absent an

abuse of discretion.

Moreover, an appellate court may not reverse a trial court's

determination concerning the admissibility of evidence unless the appellant

demonstrates he has been materially prejudice.

{¶81} Upon review, Appellant's possession of adult pornographic material

involving adults had little if any relevance to the charges of pandering sexually oriented

matter involving a minor and illegal use of a minor in nudity oriented material. We

likewise find that any relevance to the charges of voyeurism is marginal. Nevertheless,

we find Appellant failed to demonstrate that he was prejudiced by the introduction of this

evidence. The voluminous evidence of the videos and photographs found on Appellant’s

computers, combined with the testimony of Beth Evans and Appellant himself,

established Appellant's guilt. The introduction of the other pornographic material was

inconsequential to Appellant's conviction.

{¶82} Appellant’s Second Assignment of Error is overruled.

III.

{¶83} In his Third Assignment of Error, Appellant claims the trial court erred in

including Appellant’s witnesses, Joann Gibb and Jennifer Acurio, as experts when

reading the expert instructions to the jury. We disagree. Tuscarawas County, Case No. 2013 AP 11 0046 15

{¶84} An appellate court should apply an abuse of discretion standard in

reviewing a court's decision to admit or exclude expert testimony. Gen. Elec. Co. v.

Joiner,

, 144–146,

,

(1997); State v. Williams,

,

(1983). “To the extent that doing so is necessary to

avoid making an unreasonable, arbitrary, or unconscionable decision, a trial court is

obliged to apprise itself of the details of proffered evidence.” Valentine v. Conrad,

, 2006–Ohio–3561,

. Accord, State v. Bruce, 5th

Dist. No, 2006–CA–45, 2008–Ohio–5709, ¶ 37. An abuse of discretion “suggests

unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not

the role of this court to substitute its judgment for that of the trial court.”

See also

State v. Adams, 62 Ohio St.2d at 157,

.

{¶85} Courts should favor the admissibility of expert testimony whenever it is

relevant and the criteria of Evid.R. 702 are met. State v. Nemeth,

,

(1998), citing State v. Williams,

,

(1983), syllabus.

{¶86} Evid.R. 702 provides that a witness may testify as an expert if all of the

following apply:

{¶87} “(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception common

among lay persons;

{¶88} “(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the testimony; Tuscarawas County, Case No. 2013 AP 11 0046 16

{¶89} “(C) The witness' testimony is based on reliable scientific, technical, or

other specialized information.

{¶90} “Here, the trial court provided the jury with following instruction:

{¶91} “Generally, a witness may not express an opinion. However, someone

who follows a profession may express his or her opinion because of his or her education,

knowledge and experience. These individuals are called Expert Witnesses. The Expert

Witnesses in his case are the following:

{¶92} “For the State of Ohio

{¶93} “Joann Gibb, Bureau of Criminal Identification and Investigation

(B.C.I. and I.) – Computer Forensic Analyst

{¶94} “Jennifer Acurio, B.C.I. and I. Forensic Analyst (Drugs)

{¶95} ****

{¶96} “Expert Witness testimony is admitted for whatever assistance it may

provide to help you arrive at just verdicts.

{¶97} “Questions have been asked in which Expert Witnesses were permitted

to assume that certain facts were true and to give an opinion based upon such

assumption. You must determine whether the assumed facts, upon which the Expert

based his or her opinion are true. If any assumed fact was not established, you will

determine its effect upon the opinion of the Expert.”

{¶98} “As with other witness, upon you alone rests the duty of deciding what

weight should be given to the testimony of the Experts. In determining its weight, you

may take into consideration his or her skill, experience, knowledge, veracity, familiarity

with the facts of this case, and the usual rules for testing credibility in determine (sic) the Tuscarawas County, Case No. 2013 AP 11 0046 17

weight the be given to testimony.” (emphasis in original). (Final Legal Instructions at 16-

17).

{¶99} At trial, Joann Gibb testified that she is a computer forensic specialist who

has been employed by B.C.I. & I. for sixteen years. (T. at 430). She testified as to what

she does as a forensic analyst.

She explained that she is trained to look for specific

indicators and search terms when analyzing digital media in child pornography cases. (T.

at 436). She further testified as to the procedures and safeguards she employed upon

receiving Appellant’s computers and the analysis she performed. (T. at 430-432). She

testified as to the significance of her findings. (T. at 436-444).

{¶100} Similarly, Jennifer Acurio testified that she is a forensic scientist in the

drug chemistry area and that she has been employed by B.C.I. & I. since 2005. (T. at

522). She further testified that she obtained her B.S. in Forensic Chemistry form Ohio

University and a Master’s Degree in Analytical Chemistry from Northeastern Illinois

University. Additionally, she completed a one-year program in drug chemistry in Illinois

and a two-month training program in Ohio. (T. at 522-523). Ms. Acurio went on to explain

the process of analyzing substances suspected of being marijuana. (T. at 523).

{¶101} Based on the foregoing, we find that the trial court did not err in finding

Ms. Gibb and Ms, Acurio met the requirements set forth in Evid.R. 702.

{¶102} Appellant’s Third Assignment of Error is overruled.

IV.

{¶103} In his Fourth Assignment of Error, Appellant claims the trial court erred in

failing to provide “not guilty” verdict forms to the jury on Counts Eight and Nine. Tuscarawas County, Case No. 2013 AP 11 0046 18

{¶104} For this Court to reverse Appellant's convictions, we must find that the

trial court's procedure regarding its jury instructions was prejudicial.

{¶105} In State v. Fisher,

,

,

,

the Ohio Supreme Court recognized that “[i]n Arizona v. Fulminante (1991),

,

,

, the United States Supreme Court

denominated the two types of constitutional errors that may occur in the course of a

criminal proceeding - ‘trial errors,’ which are reviewable for harmless error, and

‘structural errors,’ which are per se cause for reversal. * * * Trial error is error which

occurred during the presentation of the case to the jury and which may therefore be

quantitatively assessed in the context of other evidence presented in order to determine

whether its admission was harmless beyond a reasonable doubt. * * * Structural errors,

on the other hand, defy analysis by ‘harmless error’ standards because they affect the

framework within which the trial proceeds, rather than simply [being] an error in the trial

process itself. [Fulminante] at 309 and 310,

,

,

. Consequently, a structural error mandates a finding of per se prejudice.” Fisher at

¶ 9. (Internal quotation marks omitted). See, also, State v. Wamsley,

,

,

at ¶ 15.

{¶106} In the case sub judice, Appellant was found guilty of the following allied

offenses of similar import: illegal cultivation of marijuana (R.C. 292504(A)) and

possession of drugs (marijuana) (2925.11(A)(C)(3)(c).

{¶107} With regard to these two charges, the jury was instructed as follows:

{¶108} “You are now instructed as a matter of law, that the Defendant has

acknowledged and admitted, that he cultivated marijuana on 3/27/2011 and possessed Tuscarawas County, Case No. 2013 AP 11 0046 19

marijuana on that date. The State of Ohio has charged the Defendant with felonies of

the third degree because the State alleges the amount of marijuana cultivated and

possessed by the Defendant on 3/27/2011 exceeded one thousand (1000) grams but

was less than five thousand (5000) grams. In Ohio the degree of felony or misdemeanor

pertaining to drug-related crimes such as Cultivation of Marijuana and Possession of

Marijuana is determined by the weight of the marijuana cultivated or possessed. You

will be presented with Verdict Forms of Guilty pertaining to Counts Eight and Nine of

the Indictment but no degree of felony or misdemeanor has been designated on the

respective Verdict Forms. You will determine from the evidence, beyond a reasonable

doubt, the specific weight of the marijuana cultivated and/or possessed by the

Defendant on 3/27/2011. You will insert the weight of the marijuana either cultivated or

possessed at the appropriate location on the Verdict Forms provided for you relative to

those counts. (emphasis in original).” (Final Legal Instructions at 14).

{¶109} The corresponding Verdict forms read as follows”

{¶110} COUNT EIGHT – ILLEGAL (SIC) OF MARIJUANA (R.C. 2925.04[A])-

VERDICT OF GUILTY

{¶111} “We, the Jury, impaneled and sworn, find the Defendant, Paul L.

Bracone, Jr., Guilty, beyond a reasonable doubt, of Illegal Cultivation of Marijuana in

violation of R.C. 2925.04(A) as charged in Count Eight of the Indictment. We further find

that the weight of the marijuana cultivated by the Defendant is 1,950 (filled in by hand in

by jury) grams.

{¶112} “All twelve (12) of our members agree. This verdict of Guilty is reached

this 13th (filled in by hand by the jury) day of September, 2013.” (emphasis in original). Tuscarawas County, Case No. 2013 AP 11 0046 20

{¶113} COUNT NINE–POSSESSION OF DRUGS (MARIJUANA) (R.C.

2925.11[A][C][3][c])-VERDICT OF GUILTY

{¶114} “We, the Jury, impaneled and sworn, find the Defendant, Paul L.

Bracone, Jr., Guilty, beyond a reasonable doubt, of Possession of Drugs (Marijuana)

in violation of R.C. 2925.11(A)(C)(3)(c) as charged in Count Nine of the Indictment. We

further find that the weight of the marijuana possessed by the Defendant is 1,950 (filled

in by hand by the jury) grams.

{¶115} “All twelve (12) of our members agree. This verdict of Guilty is reached

this 13th (filled in by hand by the jury) day of September, 2013.” (emphasis in original).

{¶116} Appellant objected to the above instructions, arguing that the jury should

also be presented with “Not Guilty” verdict forms.

{¶117} In this instant case, we find that the trial court ‘s failure to provide the jury

with “Not Guilty” verdict forms on the marijuana charges was error, we do not find that it

rises to the level of structural error. As set forth above, Appellant admitted to growing

and possessing marijuana. As such, the jury had only to determine the weight of the

marijuana which would result in either a felony or a misdemeanor conviction. This was

explained to the jury. We therefore find any error in not providing “Not Guilty” verdict

forms to the jury to be harmless error. Tuscarawas County, Case No. 2013 AP 11 0046 21

{¶118} Appellant’s Fourth Assignment of Error is overruled.

{¶119} For the foregoing reasons, the judgment of the Court of Common Pleas,

Tuscarawas County, Ohio, is affirmed.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs separately.

JWW/d 0821 Tuscarawas County, Case No. 2013 AP 11 0046 22

Hoffman, P.J., concurring

{¶120} I concur in the majority's analysis and disposition of Appellant's first, third

and fourth assignments of error.

{¶121} I further concur in the majority's disposition of Appellant's second

assignment of error. I do so because I find the otherwise legal pornography more than

"marginally" relevant to prove the "purpose of sexual gratification and arousal" element

in the voyeurism counts of the indictment. State v. Huffman, (2006),

. The trial court did not abuse its discretion is admitting this evidence.

________________________________ HON. WILLIAM B. HOFFMAN