2018 Ohio 4252
Ohio Ct. App.2018Background
- Defendant Joseph W. Todd was indicted for four counts of rape (victims under ten) based on conduct between 2004–2007; a jury found him guilty of all counts at trial and the court imposed two consecutive sets of concurrent life sentences (aggregate two life sentences with parole eligibility after 20 years) and classified him a sexual predator.
- During jury selection a supplemental questionnaire and an in-camera voir dire were used for prospective jurors who answered affirmatively to sensitive questions; Todd was not present for the in-camera questioning, although his counsel participated and did not request Todd’s presence.
- Todd filed a post-trial Crim.R. 33 motion for a new trial (filed 35 days after the verdict), asserting his absence from the in-camera voir dire deprived him of his right to be present and thus to a fair trial.
- The trial court denied the new-trial motion as untimely and also on the merits (finding no prejudice); Todd appealed, raising (1) plain error for his absence during voir dire, (2) abuse of discretion in denying a new trial, and (3) ineffective assistance of counsel for counsel’s failure to secure his presence.
- The appellate court concluded Todd’s absence from the in-camera voir dire, though a violation of his statutory/constitutional right to be present, was harmless (nonprejudicial) and not plain error; the court also held the new-trial motion was untimely because Todd did not seek leave to file a delayed motion or show unavoidable prevention, and it declined to develop an ineffective-assistance argument Todd himself framed as rejecting ineffectiveness.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Todd) | Held |
|---|---|---|---|
| 1. Was Todd’s absence from in-camera voir dire plain error? | The absence was harmless because defense counsel participated, exercised challenges, and no prejudice resulted. | The court violated his constitutional/statutory right to be present at all critical stages; conviction should be vacated or new trial ordered. | Not plain error; absence was harmless and did not affect substantial rights. |
| 2. Did the trial court abuse its discretion by denying Todd’s Crim.R. 33 motion for a new trial? | The motion was untimely and Todd did not seek leave or show unavoidable prevention; alternative merits finding: no prejudice. | The in-camera exclusion was an irregularity preventing a fair trial, meriting a new trial. | No abuse of discretion; motion untimely under Crim.R. 33(B) and leave to file delayed motion was not sought or proved. |
| 3. Was defense counsel ineffective for failing to request Todd’s presence during voir dire? | (State) No ineffective assistance shown; counsel adequately protected Todd’s interests. | Todd asserts counsel’s failure to request his presence could constitute ineffective assistance. | Appellate court declined to address ineffective-assistance claim because appellant’s brief argued the opposite and failed to develop a proper claim. |
Key Cases Cited
- State v. Williams, 6 Ohio St.3d 281 (1983) (failure to ensure defendant’s presence at in-camera voir dire is error but may be harmless if absence did not prejudice defendant)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-beyond-a-reasonable-doubt standard for constitutional errors)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard prerequisites)
- State v. Long, 53 Ohio St.2d 91 (1978) (plain-error recognition with caution)
- State v. Waddell, 75 Ohio St.3d 163 (1996) (appellant must show outcome would clearly have been different under plain-error review)