[Cite as State v. Osley,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-17-1025

Appellee Trial Court No. CR0201602011 v.

Jerry Osley DECISION AND JUDGMENT

Appellant Decided: February 2, 2018

*****

Julia R. Bates, Prosecuting Attorney, Claudia A. Ford, Andrew J. Lastra, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for appellee.

Laurel A. Kendall, for appellant.

*****

MAYLE, J.

{¶ 1} Following a jury trial, defendant-appellant, Jerry Osley, appeals the

February 3, 2017 judgment of the Lucas County Court of Common Pleas, convicting him

of rape and unlawful sexual conduct with a minor. For the reasons that follow, we affirm

the trial court judgment. I. Background

{¶ 2} Jerry Osley was convicted of rape, a violation of R.C. 2907.02(A)(2) and

(B), and unlawful sexual conduct with a minor, a violation of R.C. 2907.04(A) and

(B)(3), in connection with his assault of 15-year-old B.T. According to the evidence

presented at trial, Osley and B.T. were acquainted with each other through their

neighborhood. Osley, who was 46, had been spending time with B.T.’s mother and her

mother’s boyfriend. On May 19, 2016, Osley told B.T. that his teenaged daughter

wanted to meet her. He lured her to an abandoned house on Lagrange Street. The house

was dark, so B.T. turned on her cell phone flashlight. Osley grabbed the phone from her,

pushed her up against the wall, and began to strangle her. B.T. pulled out a knife that she

carried for protection, but Osley grabbed it from her and forced her up the stairs,

threatening to kill her.

{¶ 3} Once upstairs, Osley forced B.T. onto a mattress in one of the bedrooms. He

held the knife in one hand, took hold of her hair with the other, and forced her to perform

oral sex on him. While this was happening, B.T. felt behind her back and found a board.

She slid it to her right hand, waited for the right moment, and then hit Osley in the face

with it. She got up and threw an unhinged door onto him. She escaped from the house

and ran down the street toward the home where she and her mother were staying. A

friend called 9-1-1.

{¶ 4} While on the phone with 9-1-1, B.T. noticed a car pull into the parking lot

across the street. Osley emerged from the vehicle with a scooter and began to chase her.

2. B.T. ran through an alley and into the house. Osley got back into the car, which was

described to the 9-1-1 operator as a black PT Cruiser.

{¶ 5} Officers responding to the 9-1-1 call spotted a Chevy HHR—a car with a

body type similar to a PT Cruiser. It pulled into a gas station parking lot. The officers

approached the vehicle and found Osley in the back seat. He was observed to have an

injury to his forehead and blood on his coat, and he was carrying B.T.’s cell phone. B.T.

identified Osley as the man who assaulted her.

{¶ 6} B.T. was treated at St. Vincent Hospital where she underwent a sexual

assault nurse examination (“SANE”). As part of this examination, her mouth was

swabbed for DNA. She also suffered abrasions to her right buttock, right hip, lower

back, left flank, and mid-back, and photographs were taken of those injuries. A sexual

assault suspect kit was performed on Osley at Toledo Hospital.

{¶ 7} The rape and sexual assault suspect kits were sent to the Bureau of Criminal

Investigations (“BCI”) for analysis, along with the victim’s cell phone. No semen was

identified in samples taken from B.T.’s mouth, but her saliva was identified in penile

samples collected from Osley. Osley’s blood was identified on B.T.’s phone.

{¶ 8} The jury found Osley guilty of both rape and unlawful sexual conduct with a

minor. The trial court found that the convictions merged for purposes of sentencing, and

Osley was sentenced to a prison term of ten years. Osley appealed and assigns the

following errors for our review:

I. The trial court erred to the prejudice of Appellant when it denied

Appellant’s oral motion for dismissal of the jury, or in the alternative for a

3. mistrial, after Appellant made disruptive comments in front of the jury, prior to

voir dire, and when both defense counsel and counsel for the state agreed that the

jury had been tainted.

II. Appellant’s conviction for rape was against the manifest weight of the

evidence.

II. Law and Analysis

{¶ 9} In his first assignment of error, Osley claims that prospective jurors were

prejudiced when they witnessed an outburst just before voir dire during which he accused

the venire of being racist and biased. He claims that the trial court should have dismissed

the panel and replaced it with a new panel, or that it should have declared a mistrial.

Osley also claims that his rape conviction was against the manifest weight of the

evidence. We examine both of these assignments of error.

A. Osley’s Outburst in the Presence of the Venire

{¶ 10} As members of the venire were called to the jury box, but before voir dire

began, Osley became concerned because there were no African-Americans among the

venire. His attorney asked to approach the bench to voice Osley’s concern to the court:

[Defense counsel]: Judge, with the initial 24 that we’ve had sworn

in this afternoon, I just note that we have not had a person who is African-

American. Rather, we have had possibly 21 or 22 people of White color

and possibly two Hispanics.

Mr. Osley mentioned to me that he feels that this is bias, and I would

ask that at some point in time an African-American—there is one in the

4. venire—be placed on the panel. Mr. Osley feels that this venire is biased,

and he’s asked me to voice that objection.

{¶ 11} The trial court explained that the venire is selected randomly and

anonymously by “a computer poll,” then the jurors’ cards are shuffled so that the first 24

are not called in any order. The court indicated that there was no procedure for

specifically replacing someone on the panel. It asked counsel if he had any case law

supporting a method for replacing a panel member, and counsel conceded that he did not.

The court assured him that the issue would be preserved for appeal.

{¶ 12} The court resumed the jury selection process, but was interrupted by Osley:

The defendant: Your Honor?

The court: Excuse me, Mr. Osley, I’m going to go through this

process. Like we talked earlier, I’ll be able to give you time to preserve

something on the record, but this would not be the time.

The defendant: Why not? This is biased.

The court: Okay, so Mr. Osley—

The defendant: This is racial and biased.

The court: I’m going to ask that you—

The defendant: This is my life. This is racial and biased and you

know it. This is my life.

The court: Mr. Osley, we’ve put the objection on the record.

The defendant: This is my life, Your Honor. This is racial and

biased and you know it.

5. The court: Okay. I’m going to note on the record that we are

giving—that the jury is present.

The defendant: And racist and biased.

The court: And that the Court is trying to instruct Mr. Osley at this

time that we will address that at a different time.

The defendant: Man, I need the news people here. This is racist and

biased.

The court: So, Mr. Osley, the objection has been preserved. So the

objection from your initial request is preserved on the record.

The defendant: I ain’t paying for nothing.

The court: Okay, [defense counsel]?

[Defense counsel]: Yes, Your Honor.

The court: Do you wish to go forward?

[Defense counsel]: I do, Your Honor. But I just—

The defendant: He—he don’t go forward because he knows it’s

racist and biased. I don’t mean no disrespect towards Your Honor. Please

believe me. I’m a black dude fighting for my life. This is racist and biased.

If you see a lot of white—black people up there and one white

person in there, how do you think he’ll feel? Complete that. Racist and

biased.

{¶ 13} The court conferred with counsel at the bench outside the presence of the

venire. Defense counsel requested that the panel be removed and that the trial be

6. rescheduled because of Osley’s outburst. The court indicated that it would recess so that

it could conduct research.

{¶ 14} The court informed counsel that it had reviewed a case where a mistrial had

been denied despite the fact that the defendant had created a disruption in front of the

jury. Defense counsel expressed that he did not believe it possible to rehabilitate the

venire because Osley had accused the entire panel of bias. He insisted that it was

necessary to “thank but excuse this panel.” The state indicated that after consulting with

its appellate division, it agreed that the jury had been tainted and it could not go forward.

It urged that Osley be treated as an obstreperous defendant when the trial resumed.

{¶ 15} The trial court told counsel that it was concerned that excusing the venire

would encourage defendants in future cases to deliberately taint juries when the ethnicity

of the panel was not to his or her liking. It also noted that it had no control over what the

ethnicity of the next panel may look like, thus the situation could be repeated. The court

expressed that the situation could “be cleared up” by instructions to the jury and counsel

could address concerns during their voir dire of the venire.

{¶ 16} Counsel for both Osley and the state maintained the position that the jury

had been tainted, however, the state ultimately indicated that it would defer to the trial

court’s judgment. The court reviewed additional case law and decided to proceed with

the current panel. When the venire returned to the courtroom, the trial court addressed it:

Folks, we’ve put all the legal arguments on the record. I would like

to ask you to disregard the outbursts from Mr. Osley. These are very

intense situations for people, and just the beginning of a trial scenario, and

7. when you are in the stage of not knowing what’s going to happen. So I’d

like to be able to proceed.

There will likely be questions from counsel as to whether or not you

believe you can proceed fairly and impartially on this matter. Everything

about voir dire, which is the next session we are going to go through, is

about speak the truth. So it’s incredibly important that if we get to

questions that you have concerns on, that you acknowledge that this may be

difficult for you or not. * * *.

{¶ 17} Following closing arguments, in its charge to the jury, the trial court also

instructed that they “are not to consider any statements made by the Defendant during

voir dire for any purpose.”

{¶ 18} Osley argues that the trial court abused its discretion when it denied his

motion for mistrial and decided to proceed with the original venire. He claims that the

state agreed with him at trial that the venire had been tainted. And he claims that the

court’s decision “created the unconscionable result of a trial proceeding with a tainted

jury.”

{¶ 19} The state argues that Osley never moved for a mistrial, thus his assignment

of error must be reviewed for plain error. It also maintains that even if Osley did move

for a mistrial, there was no evidence that the jurors who were selected were, in fact,

tainted. It points out that during jury selection, defense counsel did not challenge for

cause even one potential juror based on racial bias or enmity. It urges that the trial court

instructed both the venire and the jury that they were to disregard comments made by

8. Osley during voir dire, and a jury is presumed to follow the trial court’s instructions.

And it insists that if there was any error, Osley invited it and, therefore, cannot take

advantage of the error.

{¶ 20} While Osley did not specifically move for a mistrial, he clearly asked that

the venire be excused and that a jury be selected from a new venire. We will, therefore,

treat his motion as one for a mistrial. See State v. Sutton, 9th Dist. Medina C.A. Nos.

2066, 2067,

, f.n. 1 (June 3, 1992) (“The parties contended

here and at trial that the dismissal of the venire did not constitute a mistrial. We

disagree.”). We review a trial court’s denial of a motion for a mistrial under an abuse-of-

discretion standard. State v. Anderson, 6th Dist. Lucas No. L-07-1351,

,

¶ 29. An abuse of discretion connotes that the trial court’s attitude is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 21} Before deciding whether to go forward with trial, the court considered

argument from counsel and conducted its own research. One of the cases it relied upon

to support its decision to proceed was State v. Chambers, 10th Dist. Franklin No. 99AP-

1308,

(July 13, 2000). As in the present case, the

defendant in Chambers was upset about the racial makeup of the venire, and he said in

front of the panel, “Oh, whole f***ing jury white. Come on now. All the jurors are

white.” Id. at * 5. In addition to this, during cross-examination of the state’s first

witness, Chambers pounded his fists on the table and had to be physically subdued by

deputies and removed from the courtroom.

9. {¶ 22} The court ordered the jurors out of the courtroom. When they were

allowed back into the courtroom, it instructed them to disregard what they had witnessed

and not to let it affect their deliberations. Chambers moved for a mistrial, but the trial

court denied the motion. On appeal, he argued that this was error, and that “the jury was

prejudiced by: (1) his swearing when the jury came out and his stating that they were all

white; and (2) his pounding on the table and then being wrestled and taken to the holding

cell by police officers.” Id. at * 12.

{¶ 23} The Tenth District affirmed the trial court judgment. It began by

recognizing that it is within the discretion of the trial court whether to grant or deny a

motion for mistrial. It went on to observe that Chambers was seeking to take advantage

of an error that he himself induced—i.e., an “invited error.” Under the invited error

doctrine, the court explained, a party may not take advantage of an alleged error that he

induced or invited the trial court to make. It further noted that courts are reluctant to

consider the disruptive conduct of a defendant to be a proper ground for a mistrial

because to do so “‘would provide a criminal defendant with a convenient device for

provoking a mistrial whenever he chose to do so.’” Id. at * 14, quoting State v. James, 2d

Dist. Clark No. 98-CA-54,

(Feb. 19, 1999). The court held

that “appellant cannot participate in numerous, intentional, disruptive acts and then seek

the protection of the court from his own misbehavior.”

The court also noted that the

trial court admonished the jury to disregard Chambers’ behavior and not to allow it to

affect their deliberations. It observed that under Ohio law, a jury is presumed to follow

instructions of the court and to obey curative instructions.

10. {¶ 24} Other districts have considered similar issues and have reached the same

conclusion. In State v. McAlphine, 8th Dist. Cuyahoga No. 79216,

, *23 (Jan. 24, 2002), for instance, the members of the jury pool overheard an

exchange between McAlphine and the court in which McAlphine was complaining about

his counsel and was being defiant of the court’s orders. The trial court told McAlphine,

“You're about to be gagged.” Id. at * 17.

{¶ 25} McAlphine argued that he was prejudiced because the trial judge’s

admonition to him in front of the jury conveyed that he was biased. He argued on appeal

that the trial court should have granted a mistrial. The Eighth District disagreed. It held

that it would not allow McAlphine to take advantage of an invited error. It also noted

that the trial court gave a curative instruction, and during voir dire, the jurors who were

selected indicated a willingness to be impartial and to decide the case based on the

evidence.

{¶ 26} Finally, in State v. Manuel, 5th Dist. Richland Case No. 92-CA-33,

, *8-10 (Feb. 5, 1993), the defendant created a disturbance in front

of prospective jurors before voir dire “by way of verbal outburst” and had to be

physically restrained and removed from the courtroom. Id. at * 8-9. Manuel argued that

his outburst mandated the trial court to grant a mistrial because his right to a fair trial was

prejudiced. The Fifth District disagreed. It concluded that Manuel’s outbursts were

deliberately designed to cause a mistrial, the trial court gave cautionary instructions to the

prospective jurors to disregard his outbursts, and there was no demonstration that the

jurors who actually sat on the case were prejudiced by the outbursts. See also State v.

11. Luton, 2d Dist. Montgomery No. 10708,

, *6-10 (Dec. 23,

1988) (affirming trial court judgment where defendant engaged in disruptive conduct in

front of prospective jurors, ranting at the trial judge and flipping over the defense table);

State v. Bey,

,

(1999) (finding that

defendant “created the outburst, so he may not persuasively argue that he is entitled to a

mistrial or an instruction to the jury to disregard his own behavior”).

{¶ 27} We agree with the conclusions reached by these courts. To begin with, the

trial court instructed the venire that it was to disregard Osley’s outburst. Counsel then

had the opportunity to question each potential juror about possible bias and to challenge

jurors on this basis. And during jury instructions, the trial court specifically instructed

the jury that it was not to consider any statements made by Osley during voir dire. We

presume that the jury followed the court’s instructions. State v. Thompson,

,

,

.

{¶ 28} In addition, we agree that Osley should not be permitted to benefit from the

error he induced. “Under the invited-error doctrine, a party will not be permitted to take

advantage of an error which he himself invited or induced the trial court to make.” State

ex rel. Bitter v. Missig,

,

(1995). Osley had been

disruptive during prior court appearances. The trial court specifically cautioned him to

control himself in front of the jury. Before bringing in the venire, the trial court

addressed Osley:

The court: And do you feel like you can stay in control of your

emotions?

12. The defendant: Yes, ma’am.

The court: Okay. So understand if there is any outbursts, if you are

getting angry with what’s being said, you need to quietly write the

information to your attorney if you have a question. You are not going to

be able to have outbursts. Court security would have to react. It would

ultimately make the jury see a part of your personality that you may not

want to be showing in trial; do you understand?

The defendant: No, I got a good personality.

The court: Okay. Just understand we’ve had some outbursts—

The defendant: During the proceedings.

The court: --during pretrial status, so I wanted to make sure, if you

are comfortable going forward, if you did take the medications, ultimately,

that you are clear-headed and you are able to understand and assist your

attorney today if you need to.

The defendant: Yes, ma’am.

{¶ 29} By failing to heed the trial court’s warning and deliberately engaging in

disruptive conduct, Osley invited error here. We agree with the trial court that to allow

Osley to take advantage of this error would encourage defendants in future cases to cause

disruptions when a venire is not to his or her liking.

{¶ 30} Osley seems to acknowledge that there exists case law adverse to his

position, but he argues that a different result should be reached here because the state

agreed at trial that the jury had been tainted. First, we note that while the state initially

13. expressed its agreement with defense counsel that the venire had been tainted and that the

trial should not proceed, it ultimately told the court that it deferred to whatever decision it

made. But even if the state agreed with Osley, this did not bind the trial court or strip it

of its discretion. See State v. O’Neal, 5th Dist. Fairfield Nos. 16-CA-35, 16-CA-37,

(finding that state’s concession that appellant’s petition should be

considered timely-filed was not binding on the trial court). It was within the trial court’s

discretion to determine whether it was necessary to draw a new venire. We find no abuse

of discretion in its decision.

{¶ 31} Accordingly, we find Osley’s first assignment of error not well-

taken.

B. Manifest Weight of the Evidence

{¶ 32} In his second assignment of error, Osley claims that his conviction for rape

was against the manifest weight of the evidence. He argues first that there was no semen

found in the victim’s mouth two hours after the rape, and he points out that the state’s

testimony indicated that semen typically remains present in a sexual partner’s mouth for

five to six hours after contact. He claims that the testimony did not explain how there

could have been a rape here without some trace of his DNA in the victim’s mouth.

{¶ 33} Osley also argues that the victim’s version of events was implausible.

Specifically, he claims that it was incredible that (1) B.T. was able to find something with

which to hit Osley in a dark house while being forced to perform oral sex; (2) a 46-year-

old man would jump out of a car and use a scooter to chase the victim around; and (3)

14. B.T. would have gone with Osley to meet his daughter when up until that time, Osley had

never spoken of having children.

{¶ 34} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. State v. Thompkins,

,

(1997). We do not view the evidence in a light

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas

No. L–10–1369, 2012–Ohio–6068, ¶ 15, citing

. Reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.”

, quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 35} Here, despite Osley’s assertions to the contrary, there was an explanation

provided for why Osley’s DNA was not found in the victim’s mouth. Alex Thiel, a

forensic scientist with BCI, testified:

Well, semen only does persist up to about five or six hours in the

oral cavity. There are factors that can make it deteriorate faster. So if there

is no ejaculation, if she’s eaten or brushed her teeth or had any fluids, it

doesn’t last very long in that cavity because you are constantly producing

saliva and your mouth is constantly washing itself out.

15. {¶ 36} As to the “implausibility” of B.T. finding a board with which to hit Osley,

her account of Osley chasing her on a scooter, and her belief that Osley was taking her to

meet his daughter, the jury saw the victim testify. They also heard the 9-1-1 call, listened

to the scientific evidence, viewed the recording of Osley’s police interview, saw

photographs depicting both the victim’s injuries and the items strewn about the

abandoned house (which included a piece of wood like the one described by the victim),

and heard from a number of other witnesses, including responding officers, the detective

assigned to the case, the SANE nurse who examined B.T., and other fact witnesses. After

weighing all of this evidence, the jury believed that Osley raped the victim.

{¶ 37} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility

determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162,

, ¶ 14. Given the strength of the evidence here, we

decline to disturb the jury’s credibility determinations.

{¶ 38} We find Osley’s second assignment of error not well-taken.

III. Conclusion

{¶ 39} We find no error in the trial court’s refusal to replace the venire or declare a

mistrial following Osley’s outburst in front of prospective jurors. We also find that

Osley’s conviction was not against the manifest weight of the evidence. Accordingly, we

16. find his two assignments of error not well-taken, and we affirm the February 3, 2017

judgment of the Lucas County Court of Common Pleas. Osley is ordered to pay the costs

of this case in accordance with App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE James D. Jensen, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

17.