STATE OF OHIO v. MICHAEL BLAIR
Appellate Case No. 28904
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 24, 2021
[Cite as State v. Blair, 2021-Ohio-3370.]
HALL, J.
Trial Court Case No. 2019-CRB-5484 (Criminal Appeal from Municipal Court)
Rendered on the 24th day of September, 2021.
TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant Prosecuting Attorney, City of Dayton Prosecutor‘s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JAMES S. SWEENEY, Atty. Reg. No. 0086402, 285 South Liberty Street, Powell, Ohio 43065 Attorney for Defendant-Appellant
I. Factual and Procedural Background
{2} On October 30, 2019, Blair was charged with misdemeanor assault. After a sеries of pretrials and continuances due to the COVID-19 pandemic, the case proceeded to a jury trial in August 2020. This was the first jury trial in Dayton Municipal Court since the pandemic shut down the court. The trial court explained to the jury at the beginning of the trial that people in the courtroom would be wearing different PPE based on their individual risk factors. Blair was required to wear a white semi-opaque paper gown over his suit, along with a face mаsk and face guard.
{3} At trial, the State presented evidence that Blair assaulted Kenneth Ebbing in the Montgomery County jail, where they were both inmates in the same cell. A video recording of the incident was presented at trial. Thе video showed Blair near his bunk when Ebbing approached and appeared to say something to Blair. Blair straightened up and immediately began punching Ebbing. Ebbing did not appear to fight back but tried to shield himself with his hands. Blair kicked Ebbing ontо the floor and stomped on him multiple times. Blair then walked away from a bloodied Ebbing. Eventually, a corrections officer removed Ebbing from the cell. The officer, Charles Whitaker, testified that he had later asked Blair why he had attacked Ebbing, and Blair had responded: “[D]id you see
{4} Blair testified in his own defense. He said that Ebbing had made several “racial comment[s]” to him that made him “angry.” (Id. at 206-207.) Blair said that he also saw that Ebbing had tattooed on his body “1488,” which Blair believed meant “all hail Hitler,” and a swastika, which Blair said he knew was a “racial tattoo.” (Id. at 207-208.) Blair said that he felt threatened, so he reacted.
{5} The trial court denied Blair‘s request for a self-defense jury instruction, finding no evidеnce that he acted in self-defense.
{6} The jury found Blair guilty of assault as charged, and the trial court sentenced him to 180 days in jail to be served concurrently with an unrelated prison sentence.
{7} Blair appeals. Blair filed a motion to stay his sentence, which the trial court granted, and thus Blair‘s appeal is not moot.
II. Analysis
{8} Blair assigns as error the trial court‘s refusal to give a self-defense instruction and the court‘s requiring him to wear PPE, particularly the paper gown.
A. Self-defense Instruction
{9} In his first assignment of error, Blair alleges that the trial court abused its discretion by not giving a self-defense instruction to the jury.
{10} “We review a trial court‘s refusal to submit a requested jury instruction for ‘an abuse of discretion under the facts and circumstances of the case.’ ” State v. Taylor, 2d Dist. Montgomery No. 28668, 2020-Ohio-6854, ¶ 10, quoting State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989).
{11}
If, at the trial of a person who is accused of an offense that involved the person‘s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, * * * the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense.
“To warrant an instruction on self-defense,
{12} Here, the video recording of the confrontation showed that Ebbing approached Blair slowly and not in an aggressive manner. Ebbing did not do anything
A. I had—Mr. Blair had stopped me and said—I kind of—I asked him, I said so what was that. He said—he looked at me and he said did you see his tattoоs? I was tired of it.
Q. Ok. And is that all he said?
A. Yes.
Q. He didn‘t mention anything about—nothing about being concerned for his safety. Nothing about him being attacked?
A. No.
* * *
Q. Anything about him being threatened?
A. No.
(Id. at 195-196.)
{13} There was no evidence to support Blair‘s claim that he acted out of fear of bodily harm, and one cannot use physical force to defend against psychological harm. In the physical confrontation here, Blair was the physical aggressor, lashing out first. While
{14} The first assignment of error is overruled.
B. Having to wear PPE
{15} In his second assignment of error, Blair alleges that the trial court violated his constitutional rights by ordering him, over his objection, to wear PPE in the courtroom, particularly the paper gown.
{16} The United States Supreme Court has explained that “[c]entral to the right to a fаir trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that ‘one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.’ ” Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). But the Court cautioned that “[t]his does not mean, however, that every practice tending to singlе out the accused from everyone else in the courtroom must be struck down.” Id. A reviewing court must “look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to posе an unacceptable threat to defendant‘s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. at 572.
{17} Requiring a defendant tо wear PPE in a courtroom is not inherently prejudicial. Contrary to Blair‘s assertion, wearing a paper PPE gown is not akin to wearing
The court takes public health and safety concerns very seriously. It has implemented aggressive policies to prevent the risk of infections of COVID 19 for jurors and other court viewers. The court is following thе guidance provided by the Ohio Department of Health and the Department of Public Health Dayton and Montgomery County. We would like to assure that the court has done everything it can to safeguard your health during your time in the courthouse. You may see some persons in the courtroom wearing personal protective equipment also known as PPE, in addition to facial coverings. The Ohio Department of Health has different recommеndations for PPE depending on health risk factors and personal circumstances. The PPE that the court has provided to you as a juror is in the current compliance with the recommendations by the Ohio Department of Health.
{18} Practices that are not inherently prejudicial must be approached on a case-by-case basis. Holbrook at 569. Having concluded that wearing PPE is not inherently prejudicial, we must next determine whether Blair was actually рrejudiced by having to wear a white paper PPE gown, along with a face mask and face guard. We do not think so. Everyone in the courtroom, including the jurors, was required to wear PPE. Although Blair may have been the only one wearing a gown, we see no reason to think that this affected the juror‘s judgment. We do not think that the PPE gown was the “distinctive, identifiable attire” of an inmate that may have affected a juror‘s judgment. And even if it were, the jurors knew that Blair had been an inmate, because the assault occurred inside the Montgomery County Jail while Blair was being held there. Given the trial court‘s PPE explanation, it is more likely that the jurors simply thought that Blair‘s health or other personal circumstances made his wearing the gown prudent.
{19} Blair says that there is nothing in the record to establish why only he would need to wear a gown. There is no evidence that, for example, Blair was exposed to COVID-19 or that he was at a highеr risk of exposing anyone to COVID-19. But it was already well-known at the time of the trial that the insidious nature of the coronavirus is such that one can be infected and capable of spreading it before symptoms begin to manifest. The trial court could have reasonably inferred that being confined in the relatively small space of a jail with many other people made Blair‘s risk of infection higher. Regardless, given all the uncertainties, including the unknowns about the virus at the time of the trial, we cannot say that the trial court acted unreasonably by requiring Blair to wear the PPE that it did.
{21} The second assignment of error is overruled.
III. Conclusion
{22} We have overruled the two assignments of error presented. The trial court‘s judgment is affirmed.
WELBAUM, J., concurs.
DONOVAN, J., concurs in judgment only.
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Troy B. Daniels
James S. Sweeney
Hon. Colette E. Moorman