STATE OF OHIO, Plaintiff-Appellee, vs. TRACIE M. HUNTER, Defendant-Appellant.
APPEAL NOS. C-140684, C-140704, C-140717
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
January 15, 2016
2016-Ohio-123
Mock, Judge.
TRIAL NOS. B-1400110, B-1400199
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.
{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
{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 shе 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 jeоpardize 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.
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 quеstion 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 shе 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 tо 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 dоcuments to Hunter that day. Steven Hunter testified that Hunter then provided the documents to him, which he in turn brought to
{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 proсeed 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.
{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 befоre 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 investigаtion, 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
{17}
{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 thosе 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, 100 Ohio St.3d 1207, 2003-Ohio-5549, 797 N.E.2d 985, ¶ 4 (Moyer, C.J., concurring) (it is appropriate to consider opinions from the Ohio Ethics Commission when interpreting the scope of
{20} Limiting the applicability of
[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 mаtters 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
{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 dоcuments 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 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16; State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 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.”
{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 opеn court, and (3) the jury is polled and no dissent is registered.” See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 34, quoting United States v. White, 972 F.2d 590, 595 (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
{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 оpportunity, 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, 90 Ohio St.3d 108, 121, 734 N.E.2d 1237 (2000), quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.1958). The Williams court concluded that:
the jury poll is well suited to sеrve 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
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
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 dеprived 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, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The touchtone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.‘” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The test is whether the remarks were improрer and, if so, whether they prejudicially affected substantial rights of the defendant. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (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, 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (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
{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, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 145. Further, the trial court repeatedly admonished the jury that closing arguments are not evidence. See State v. Simmons, 1st Dist. Hamilton No. C-130126, 2014-Ohio-3695, ¶ 77 (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
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.