[Cite as State v. Hunter,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-140684 C-140704 Plaintiff-Appellee, : C-140717 TRIAL NOS. B-1400110 vs. : B-1400199

TRACIE M. HUNTER, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 15, 2016

Mark R. Meterko, Karl H. Schneider, R. Scott Croswell, III, and Merlyn D. Shiverdecker, Special Prosecuting Attorneys, for Plaintiff-Appellee,

Ohio Justice & Policy Center and David A. Singleton, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. O HIO F IRST D ISTRICT C OURT OF A PPEALS

M OCK , Judge.

{¶1} In three assignments of error, defendant-appellant Tracie M. Hunter

appeals the decision of the trial court convicting her of one count of having an

unlawful interest in a public contract. We affirm.

Factual Background

{¶2} In 2010, Hunter ran for a judgeship in the Hamilton County Juvenile

Court. Following litigation over the counting of provisional ballots, she was

determined to have won the election and was sworn in on May 25, 2012.

{¶3} Over time, employees in the prosecutor’s office noticed what they

believed to be a pattern of Hunter backdating certain entries. These employees

suspected that Hunter was backdating the documents with the specific intention of

depriving their office of the ability to timely appeal the decisions. After an internal

investigation concluded, the Hamilton County prosecuting attorney asked the

common pleas court to appoint special prosecutors to investigate the activity. The

common pleas court appointed two special prosecutors, who conducted their own

investigation and eventually convened a special grand jury to assist them. At the

conclusion of its investigation, the grand jury indicted Hunter on nine counts

involving several alleged instances of illegal conduct while in office.

The Termination Proceedings against Steven Hunter

{¶4} The sixth count of the indictment alleged that Hunter had an unlawful

interest in a public contract, in violation of R.C. 2921.42(A)(1). According to the

testimony presented during trial, the charge stemmed from the termination proceedings

against Steven Hunter, an employee of the Hamilton County Juvenile Court’s Youth

Center (“Youth Center”) and Hunter’s brother.

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{¶5} Steven Hunter was employed as a juvenile corrections officer. On July 7,

2013, Steven Hunter was involved in an incident in which he was alleged to have hit a

youth in the intake department of the detention center. As a result of that incident,

Dwayne Bowman, the superintendent of the Youth Center, recommended that the court

terminate Steven Hunter and that a hearing be scheduled for that purpose.

{¶6} Steven Hunter was informed of the decision on July 25, 2013. Shortly

after 10:30 that evening, Hunter sent an email to all employees of the Youth Center in

which she identified a number of safety concerns, which she said had been brought to

her attention as a result of an email she had sent out previously. She said that she would

schedule a closed meeting to discuss the issues with the corrections officers.

{¶7} Bowman testified that the email was troubling. He said that he was

concerned that the email “would cause confusion with the staff at the youth center. Mr.

Hunter’s termination process was still occurring and I believe that it could jeopardize

that process.” Bowman noted that many of the items on Hunter’s list echoed the main

explanations that Steven Hunter had given for his actions during the July 7 incident,

suggesting that the email was Hunter’s way of inserting herself into the proceedings.

Brian Bell, assistant superintendent of the Youth Center, had similar concerns, testifying

that he felt that “she was going to speak to the residents about it to conduct basically her

own investigation.”

{¶8} On July 29, 2013, Hunter sent an email to Bowman in which she

requested that he send her a number of documents. The email demanded

copies of all incident reports related to [the youth] and any and all JCOs

involving [the youth] and other staff, prior or subsequent to alleged

incident with JCO Hunter. All incidents reported during any time frame

that [the youth] was detained at the Youth Center, shall be included.

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Please provide copies of all drug tests performed of [the youth]

during all times at Youth Center. Medical reports of any positive drug

tests shall also be included, including the substances detected.

Please forward all copies of all incidents reported involving [the

youth] with police.

{¶9} Bowman replied by asking Hunter if she wanted only the incident

reports, or if she also wanted “other documents related to our investigation.” Bowman

testified that he had asked that clarifying question because Hunter was requesting

documentation that was “above and beyond the information that we would normally

provide to someone not directly involved in the investigation or someone from the

investigative team.” He was concerned at that point and was “trying to protect the

integrity of the disciplinary process, of the investigation, * * * and also to give the judge

the opportunity to clarify that she was not asking for that kind of information, but just

the information of the incident.” Rather than restraining her query, Hunter replied that

she wanted “all documentation of every incident and every employee pertaining to [the

youth] during his stay at the Youth Center * * *.”

{¶10} Bowman testified that this exchange was very stressful for him. He said

that he was greatly concerned because “[i]t was something that I had not experienced

before for a judge to be directly involved in an incident there at the Youth Center.

Certainly the fact that this was the brother of the judge.” Likewise, Bell testified that he

had never seen a judge directly involved in the disciplinary process of a Youth Center

employee. According to Bell, the types of documents provided to Hunter would not have

been provided to an employee under any circumstances.

{¶11} Bowman provided the documents to Hunter that day. Steven Hunter

testified that Hunter then provided the documents to him, which he in turn brought to

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his attorney that evening. His attorney testified that she only accepted some of the

documents. His attorney testified that she refused to accept some of the documents

because it would have been “unethical” for her to take them and that she was “concerned

that [she] might have to make an ethical report to the Supreme Court about the person

that gave him” the documents.

{¶12} The next morning, Steven Hunter appeared with his attorney for the

hearing. Bell testified that, under normal circumstances, the first hearing is continued

because the employee receives his discovery packet at the first hearing and usually

requires time to review the documents. Steven Hunter’s counsel was able to proceed

with the hearing that day, which concluded after several hours. Steven Hunter was

eventually terminated.

The Trial and Verdict Return

{¶13} After Hunter’s indictment, the case proceeded to a lengthy jury trial.

After five weeks of testimony, the jury received the case. Jury deliberations began the

afternoon of Wednesday, October 8, 2014. On Friday at 4 p.m., the jurors said that they

had reached a verdict on Count 6, but were unable to reach a verdict on the other counts.

The foreperson gave the completed verdict form to the trial court. In open court, the

trial court reviewed the document and ordered the jury to be polled as to whether the

verdict was theirs. Each member of the jury answered affirmatively without

equivocation. The trial court then said:

I’m going to - - I have indicated that this verdict will be in. We are not

indicating what the verdict is, but this verdict will be entered. And I’m

going to hand this verdict to the court reporter, Mr. Blum, and I’m going

to ask him if he would seal this verdict.

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Defense counsel entered no objection to the procedure employed by the trial court. The

jury then received the Howard charge—a supplemental instruction for the court to give

a deadlocked jury designed to encourage the jurors to reach a verdict. See State v.

Howard,

,

(1989). The trial court dismissed the jury for

the holiday weekend.

{¶14} The jury returned Tuesday morning and resumed deliberations. Shortly

after noon, the jury returned to the courtroom and the foreperson informed the trial

court that the jurors could not reach a verdict on the remaining counts. Once the trial

court was satisfied that further deliberation would be fruitless, the clerk read the verdict

for Count 6 in open court. After the trial court thanked the jury for its service, but before

the jurors were excused, counsel for Hunter asked that the jury be polled as to Count 6.

THE COURT: The jury has already been polled. They were previously

polled and that’s it. They were polled. They were polled.

MR. BENNETT: I thought until the verdict was published.

THE COURT: They were polled and they were asked whether Count 6

was their true verdict and they indicated yes and so it’s over. I indicated

that.

{¶15} The matter was continued to allow for a presentence investigation, after

which Hunter was placed on community control for one year, and was ordered to serve

180 days in the Hamilton County Justice Center. Hunter’s sentence has been stayed

pending this appeal.

The Acquittal Motion was Properly Denied

{¶16} In her first assignment of error, Hunter claims that the trial court

erred when it denied her motion for an acquittal. The standard of review for the

denial of a Crim.R. 29 motion for an acquittal is identical to the standard of review

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for a sufficiency-of-the-evidence claim. We examine the evidence admitted at trial in

the light most favorable to the state. We then determine whether that evidence could

have convinced a rational trier of fact that the essential elements of the crime had

been proved beyond a reasonable doubt. See State v. Jenks,

,

(1991), paragraph two of the syllabus. It is a test of adequacy, and

whether the evidence is sufficient to sustain the judgment is a question of law.

Eastley v. Volkman,

,

,

, ¶ 11.

{¶17} R.C. 2921.42(A)(1) states that “[n]o public official shall knowingly * *

* employ the authority or influence of the public official’s office to secure

authorization of any public contract in which * * * a member of the public official’s

family * * * has an interest.” A “public contract” is defined to include “the purchase

or acquisition, or a contract for the purchase or acquisition, of property or services *

* * including the employment of an individual by the state, any of its political

subdivisions, or any agency or instrumentality of either.” R.C. 2921.42(I)(1).

{¶18} Hunter first argues that since the statute speaks of securing

authorization, it would only criminalize interference in the initial hiring of a family

member—interference in a termination proceeding would not be covered. But

“securing” has meanings in addition to those relating to an initial acquisition.

According to Black’s Law Dictionary, the word “secure” can also relate to preventing

exposure to danger, to make safe, or to make “so strong, stable, or firm as to insure

safety and financial security.” Black’s Law Dictionary 942 (Abridged 6th Ed. 1991).

Thus, the statute encompasses not just the initial acquisition of employment, but also

any subsequent conduct designed to protect the employee’s position.

{¶19} Our reading of the statute comports with the position of the Ohio

Ethics Commission on the matter. See State v. Urbin,

, 2003-

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Ohio-5549,

, ¶ 4 (Moyer, C.J., concurring) (it is appropriate to consider

opinions from the Ohio Ethics Commission when interpreting the scope of R.C.

2921.42). In 1992, that body concluded that the statute “extends beyond the initial

hiring of the family member and prohibits a public official from participating in any

matter or decision which would affect the continuation, implementation, or terms

and conditions of an individual contract of employment for a member of his family.”

See 1992 Ohio Ethics Commission Op. No. 92-012.

{¶20} Limiting the applicability of R.C. 2921.42(A)(1) would inappropriately

and drastically constrain the statute’s scope and would fail to curtail a majority of the

abuse the General Assembly intended to prevent. As the Ohio Ethics Commission

noted,

[i]f it were held that the prohibitions imposed by R.C. 2921.42(A)(1)

applied only to authorizing or securing a family member's initial

employment, then the prohibitions could be effectively circumvented

where a public official did not participate in the initial hiring decision,

but subsequent to the initial employment he authorized or approved

payments to a family member for services rendered, or advocated,

recommended, voted upon, or participated in discussions or decision-

making regarding such matters as pay raises, additional benefits, or

other modifications of the public employment.

1992 Ohio Ethics Commission Op. No. 92-012.

{¶21} Therefore, we hold that a violation of R.C. 2921.42(A)(1) includes not

only interference with the initial decision to employ a family member, but also extends

to other areas of employment, including termination proceedings.

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{¶22} Hunter next argues that the record does not support her conviction. We

disagree. Both Bowman and Bell testified that they perceived Hunter’s conduct as her

attempting to interfere with the disciplinary process and her brother’s termination.

Bowman provided the documents to Hunter, and her delivery of the documents to her

brother concluded the matter. While Hunter argues that the state failed to meet its

burden of proof because it did not demonstrate which documents were actually

provided, we find that a jury could reasonably infer that the documents were ones to

which Steven Hunter was not entitled based on the testimony of Bowman and Bell and

how Steven Hunter’s attorney treated them.

{¶23} Hunter further argues that she could not be convicted because her

brother was actually fired. Thus, her intercession was without fruit and no interference

occurred. But, on this record, we conclude that the crime was complete, at the latest,

when she delivered the documents to her brother. At that moment, she had used her

authority or the influence of her office to secure her brother’s continued employment.

For our purposes, the outcome of the proceeding was immaterial.

{¶24} For these reasons, the trial court properly denied Hunter’s motion for an

acquittal, and we overrule her first assignment of error.

Jury Polling Not Plain Error

{¶25} In her second assignment of error, Hunter claims that the trial court

erred when it failed to poll the jury at the conclusion of the case. Because Hunter failed

to object when the trial court polled the jury after it received the verdict for Count 6, we

will only reverse if the procedure below amounted to plain error. To notice plain error,

we must first find that an error occurred, that the error was an obvious defect in the trial

proceedings, and that the error affected the outcome of the trial. State v. Payne, 114

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Ohio St.3d 502,

,

; State v. Eafford,

,

,

, ¶ 11.

{¶26} On the record before us, we cannot conclude that the decision to poll the

jury prior to publication of the verdict was plain error. The Revised Code states that

“[b]efore the verdict is accepted, the jury may be polled at the request of either the

prosecuting attorney or the defendant.” R.C. 2945.77. Similarly, Crim.R. 31(D) states

that “[w]hen a verdict is returned and before it is accepted the jury shall be polled at the

request of any party or upon the court's own motion.” Neither the statute nor the rule

requires that the jury verdict be read in open court prior to polling the jury.

{¶27} In support of her position, Hunter quotes a line from a 2003 decision of

the Ohio Supreme Court, which says that “[a] verdict is final if (1) the deliberations are

over, (2) the result is announced in open court, and (3) the jury is polled and no dissent

is registered.” See State v. Williams,

,

,

, quoting United States v. White,

(5th Cir. 1992). But Williams

does not support Hunter’s position.

{¶28} In Williams, the court addressed the question of whether a juror could

recant his or her verdict at any time before it is journalized. Williams was a death-

penalty case in which a juror had asked to recant her verdict on one of the counts after

the guilt phase of the trial had concluded but before the penalty phase had begun. The

Williams court began its analysis by stating that “[n]umerous cases hold that the verdict

becomes final once the jury has been polled and each juror has assented to the verdict in

open court.” Williams at ¶ 34. The Williams court then quoted the White language cited

by Hunter.

{¶29} The language cited as it relates to the requirement of publication prior to

finality is dicta. It was not necessary to the court’s analysis. And it is not found in the

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syllabus of Williams, which simply states that “[o]nce a poll of the jurors has been

completed and all have assented to the verdict, a juror may not thereafter rescind or

modify his or her vote.” Id. at syllabus. Additionally, the Williams court cited another

federal appellate decision, which stated that “[a] verdict becomes immutable by the jury

once announced in open court, or when it has been confirmed by a poll, if ordered.” Id.

at ¶ 35, quoting United States v. Dakins,

(D.C.Cir. 1989).

{¶30} There is no reading of the rule or statute that requires that the jury be

polled only after the verdict is announced in open court. In fact, the Eighth Appellate

District has held that polling the jury before reading the verdict does not run afoul of

Crim.R. 31(D), because the rule only requires the court to poll the jury for unanimity

before accepting the verdict. State v. Bradley, 8th Dist. Cuyahoga No. 79354, 2002-

Ohio-3895, ¶ 66.

{¶31} The Ohio Supreme Court has previously addressed the role of the jury

poll. In 2000, the court stated

[a] jury poll’s purpose is to “give each juror an opportunity, before the

verdict is recorded, to declare in open court his assent to the verdict

which the foreman has returned and thus to enable the court and the

parties to ascertain with certainty that a unanimous verdict has in fact

been reached and that no juror has been coerced or induced to agree to a

verdict to which he has not fully assented.”

State v. Hessler,

,

(2000), quoting Miranda v.

United States,

(1st Cir. 1958). The Williams court concluded that:

the jury poll is well suited to serve as the benchmark of finality. The poll is

a solemn ceremony whose formality signals the conclusive nature of the

verdict to all who are present. The poll focuses each juror's attention on

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the verdict and gives each a clear-cut opportunity to declare in open court

her assent to or dissent from the [verdict].

Williams at ¶ 36.

{¶32} The procedure followed by the trial court did not violate any provision of

Crim.R. 31(D) or R.C. 2945.77, and its use did not run afoul of the Ohio Supreme Court’s

view on the role and import of the jury poll. Therefore, the trial court did not commit

plain error when it polled the jury prior to publication of the verdict. We overrule

Hunter’s second assignment of error.

No Actionable Prosecutorial Misconduct

{¶33} In her third assignment of error, Hunter claims that numerous instances

of prosecutorial misconduct occurred during the state’s closing argument that deprived

her of a fair trial. We disagree.

{¶34} Generally, prosecutorial misconduct will not provide a basis for

overturning a criminal conviction, unless, on the record as a whole, the misconduct can

be said to have deprived the appellant of a fair trial. State v. Lott,

,

(1990). “The touchtone of analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’ ” State v. Hanna,

,

,

, ¶ 61, quoting Smith v. Phillips,

,

,

(1982). The test is whether the remarks were improper and, if so, whether

they prejudicially affected substantial rights of the defendant. State v. Smith,

,

(1984).

{¶35} A prosecuting attorney has wide latitude to summarize the evidence and

zealously advocate the state's position during closing argument. See State v. Richey,

,

(1992). The propriety of a specific remark by a

prosecutor must not be judged in isolation, but in light of the tenor and context of the

12 O HIO F IRST D ISTRICT C OURT OF A PPEALS

entire closing argument. See State v. Slagle,

,

(1992). In almost all of the instances cited by Hunter, there was no objection. She,

therefore, has waived all but plain error. See State v. D'Ambrosio,

,

143-144,

(1995).

{¶36} We have reviewed Hunter’s argument, and the chart of 51 specific

instances of alleged improper comment, from the perspective of not just the lengthy

closing arguments presented by both sides, but also in light of the lengthy trial that

preceded them. In many of the instances, Hunter’s counsel opened the door to

comments made by the state in rebuttal with his own closing remarks. See State v. Diar,

,

,

. Further, the trial court

repeatedly admonished the jury that closing arguments are not evidence. See State v.

Simmons, 1st Dist. Hamilton No. C-130126,

(reversal for

questionable comments after lengthy trial not necessary because the jury was advised

that the arguments are not evidence).

{¶37} The trial in this case was long and intense. The closing arguments of

both sides were equally intense. And while some of the comments may have stretched

the bounds of what is acceptable in closing arguments, the record does not support the

conclusion that the arguments of the state deprived Hunter of a fair trial. Hunter’s third

assignment of error is overruled.

Conclusion

{¶38} Hunter’s conviction for having an unlawful interest in a public contract

was based on sufficient evidence; therefore the trial court properly denied her motion for

an acquittal. Further, the trial court did not commit plain error when it polled the jury

after receiving the verdict for having an unlawful interest in a public contract but before

it was publicized. And the state’s comments during rebuttal closing argument did not

13 O HIO F IRST D ISTRICT C OURT OF A PPEALS

deprive Hunter of a fair trial. Having considered and overruled all three assignments of

error, we affirm the judgment of the trial court.

Judgment affirmed.

DEWINE, P.J., and STAUTBERG, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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