State of Ohio, Plaintiff-Appellee, v. [T.L.], Defendant-Appellant.
No. 19AP-196
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 23, 2020
2020-Ohio-3430
DORRIAN, J.
(C.P.C. No. 17CR-6522) (REGULAR CALENDAR)
Rendered on June 23, 2020
On brief: Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee. Argued: Steven L. Taylor.
On brief: The Law Office of W. Joseph Edwards, and W. Joseph Edwards, for appellant. Argued: W. Joseph Edwards.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, T.L., appeals from the judgment of conviction and sentence entered by the Franklin County Court of Common Pleas pursuant to jury verdicts finding him guilty of gross sexual imposition and rape. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Appellant was indicted on two counts of gross sexual imposition, third-degree felony offenses in violation of
{¶ 3} W.L. testified she was born in China and came to the United States at age 10, to live with her aunt and appellant, who was married to her aunt at the time. Appellant had permanent residency in the United States and was appointed as W.L.‘s legal guardian. W.L. testified that when she was 11 years old, appellant first touched her breasts over her clothing in the apartment where they lived. Appellant touched her breasts again on subsequent occasions and later progressed to touching her pubic area under her clothing. Appellant told W.L. not to tell her aunt or anyone else about these incidents. W.L. testified she tried to avoid appellant by staying close to her aunt and cousins, and did not tell anyone about appellant touching her. W.L. stated appellant touched her breasts and pubic area many times, including times when she was showering. During some of these incidents, appellant would also touch W.L.‘s breasts and pubic area with his tongue. When she was 15 years old, appellant brought W.L. home from school one day and took her to the living room of the house where they lived. He pushed her to the floor and ordered her to remove her clothes. Appellant removed his pants and forced intercourse with her. W.L. testified appellant forced intercourse with her multiple times during the subsequent years.
{¶ 4} W.L. testified that when she was 14 years old, appellant told her there was a medical condition with her vagina that could only be cured by having a sexual relationship. Appellant told her he had spoken with a doctor in New York named Feng, who advised that the alleged condition should be treated by having a sexual relationship. When W.L. was older, she unsuccessfully tried to contact this doctor using telephone numbers appellant provided. She later received voicemails from a man identifying himself as Dr. Feng. The caller stated that W.L. needed to have her condition treated, then have photographs taken and sent to the doctor‘s office. W.L. testified appellant took photographs of her pubic area on multiple occasions and claimed he would send them to the doctor. Appellant also gave W.L. herbal pills that he claimed would treat her alleged medical condition.
{¶ 5} The final time appellant forced intercourse on W.L. occurred when she was 20 years old, shortly before appellant was due to travel to China. Although appellant had told W.L. that would be the last time, when he was in China he sent messages to W.L. indicating he would need to have intercourse with her again to treat the alleged medical condition. W.L. decided to tell her aunt about the incidents and her aunt convinced her to
{¶ 6} The prosecution also presented testimony from B. Feng, who testified he knew appellant and considered him a friend. Feng testified appellant asked him to call a particular telephone number and pretend to be a doctor. Appellant asked Feng to tell the recipient of the call that she was having severe health issues and urge her to be seen by a doctor. Appellant told Feng the intended call recipient‘s first name, which matched W.L.‘s first name. Feng testified to the area code and last four digits of the telephone number appellant asked him to call, which matched W.L.‘s cell phone number. He called the number three times, but no one answered, and he left two voicemail messages.
{¶ 7} Grove City Police Detective Rick Steller testified he investigated W.L.‘s report, including performing a forensic investigation of appellant‘s cell phone. Detective Steller testified he could only retrieve a limited amount of historic information from a cell phone. The forensic investigation indicated that 395 calls and 26 text messages were exchanged between appellant‘s cell phone and Feng‘s cell phone during the period from November 2016 through November 2017.
{¶ 8} Appellant called as witnesses his sister and one of his cousins. They both testified they had interacted with appellant and his family, and that appellant did not treat W.L. differently than his own daughters. They both stated they never saw anything inappropriate between appellant and W.L.
{¶ 9} The jury found appellant guilty on all six charges as set forth in the indictment. The trial court subsequently conducted a sentencing hearing and imposed sentences of 30 months imprisonment on each of the gross sexual imposition convictions and 5 years imprisonment on each of the rape convictions. The court imposed all sentences to be served consecutively, for a total term of 25 years imprisonment. The court also notified appellant he was classified as a Tier III sexual offender, with lifetime registration duties, and that he would be subject to a mandatory period of post-release control.
II. Assignments of Error
{¶ 10} Appellant appeals and assigns the following four assignments of error for our review:
I. DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL THUS DEPRIVING HIM OF SUBSTANTIAL RIGHTS UNDER STATE LAW AND HIS DUE PROCESS
II. DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THEREBY VIOLATING HIS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO ENSURE THAT DEFENDANT-APPELLANT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY REJECTED ANY PLEA DEAL THEREBY DEPRIVING HIM OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS HIS DUE PROCESS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTIONS.
IV. THE JURY‘S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. Analysis
A. Failure to remove jurors for cause
{¶ 11} Appellant argues in his first assignment of error that the trial court denied his right to due process and a fair trial by failing to excuse certain potential jurors for cause, thereby requiring appellant to exercise peremptory challenges to remove those individuals from the jury. Appellant was accused of crimes involving sexual assault and several prospective jurors admitted to having experienced sexual assault. Appellant claims those prospective jurors were potentially biased against him due to their personal experiences of sexual assault. Appellant asserts the trial court‘s failure to excuse those potentially biased prospective jurors for cause forced him to use peremptory challenges to remove them from the final jury panel. Appellant argues the composition of the jury that heard his case was unfairly shaped by the trial court‘s action, suggesting he could have used his peremptory challenges to remove other prospective jurors if the trial court had removed for cause the prospective jurors who disclosed a history of sexual assault.
1. Voir dire and jury selection
{¶ 12} The prosecutor and appellant‘s trial counsel conducted voir dire of the prospective members of the jury. During the prosecutor‘s voir dire, five prospective jurors indicated they had been victims of sexual assault. These individuals were designated as
{¶ 13} Appellant was entitled to exercise four peremptory challenges in selecting the jury and one peremptory challenge in selecting alternate jurors.
2. Constitutional claim
{¶ 14} Appellant asserts the trial court‘s failure to excuse potentially biased jurors violated his constitutional rights to due process and a fair trial. However, the United States Supreme Court has held that when a trial judge erroneously refuses to dismiss a potential juror for cause, “if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.” United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000). See also Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So
3. State law claim
{¶ 15} The Supreme Court of Ohio has held that under state law ” ‘where the defense exhausts its peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause in a criminal case may be prejudicial.’ ” Hale at ¶ 87, quoting State v. Cornwell, 86 Ohio St.3d 560, 564 (1999). See also State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 92 (citing Hale); State v. Getsy, 84 Ohio St.3d 180, 191 (1998) (“[E]rror in the denial of a challenge of a juror for cause cannot be grounds for reversal when the defendant did not exhaust his peremptory challenges.“). In this case, appellant exhausted his peremptory challenges before the full jury was seated; therefore, we must determine whether the trial court erred by refusing to remove the prospective jurors for cause.
{¶ 16} As noted above, Prospective Juror 28 was not made a member of the jury or an alternate juror. The panel of jurors and alternates was selected before reaching Prospective Juror 28, and appellant fails to demonstrate any prejudice arising from the trial court‘s failure to excuse Prospective Juror 28 when his trial counsel initially expressed general concern at the close of the prosecutor‘s voir dire. Prospective Juror 22, although seated as the second alternate juror, ultimately did not participate in the jury‘s deliberations or verdicts. Therefore, we confine our analysis to whether the trial court erred by failing to dismiss Prospective Juror 4, Prospective Juror 5, and Prospective Juror 15 for cause.
{¶ 17} A prospective juror in a criminal case may be challenged for cause on multiple grounds, including that he or she “is possessed of a state of mind evincing enmity or bias toward the defendant or the state” or “is otherwise unsuitable for any other cause to serve
{¶ 18} Appellant failed to challenge Prospective Juror 4 for cause before using a peremptory challenge to excuse her from the jury. Therefore, appellant has waived all but plain error review with respect to the trial court‘s failure to remove Prospective Juror 4 for cause. See State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 72 (holding defendant waived objection to a particular juror by failing to challenge him for cause or exercise a peremptory challenge and applying plain error review on appeal). Plain error exists when an error is plain or obvious and affects a substantial right. State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 13. The error must constitute an obvious defect in the legal proceedings and there must be a reasonable probability that the error affected the outcome. State v. Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640, ¶ 32. Accordingly, while we review the trial court‘s denial of the challenges for cause of Prospective Juror 5 and Prospective Juror 15 for abuse of discretion, we apply the plain error standard to the trial court‘s failure to remove Prospective Juror 4 for cause.
{¶ 19} During the prosecutor‘s voir dire, Prospective Juror 4, Prospective Juror 5, and Prospective Juror 15 discussed their sexual assault experiences. Prospective Juror 4 indicated she previously had an abusive relationship partner, who used physical, sexual, and mental abuse to control her. When asked whether this experience would prevent her from being fair and impartial in a sexual assault case, Prospective Juror 4 indicated it would not. She stated, “I‘ve been on both sides of the spectrum with criminal and, you know, straight line, I guess you could say. So I get where people are coming from in some cases because I know everybody has different lives and different points of view that can make
{¶ 20} When final jury selection occurred, appellant‘s trial counsel challenged Prospective Juror 15 for cause, based on her having been sexually assaulted and having multiple relatives connected with law enforcement. In denying the challenge for cause, the trial court noted that while Prospective Juror 15 admitted to having been sexually assaulted she asserted she could be a fair and impartial juror despite that experience. With respect to her relatives in law enforcement, Prospective Juror 15 stated those relationships would not dissuade her from being fair and impartial. The trial court held there was nothing in Prospective Juror 15‘s statements that would evince enmity toward appellant or preclude her from being a fair and impartial juror. Appellant‘s trial counsel also challenged Prospective Juror 5 for cause, based on her experience of sexual abuse by a relative. The trial court denied the challenge because Prospective Juror 5 articulated reasons why she believed she could be a fair and impartial juror despite having been sexually assaulted.
{¶ 21} This court has found an abuse of discretion where, in selecting the jury for a rape and kidnapping trial, the trial court failed to dismiss for cause a prospective juror who privately admitted to the trial court and counsel that she had been raped three years earlier. State v. Zerla, 10th Dist. No. 91AP-562 (Mar. 17, 1992). Although the prospective juror claimed she could put the experience behind her and decide the case fairly on its merits, this court noted on appeal that she also admitted to having been arrested three times for driving while intoxicated during the years following the rape and attributed that behavior to emotional trauma resulting from the rape. She also admitted she was still receiving rape-related counseling. Under those circumstances, this court concluded the prospective juror‘s pledge to remain impartial and unbiased was insufficient to overcome the implied bias resulting from her recent experience as a victim of sexual assault.
{¶ 22} Other appellate decisions have distinguished Zerla on its facts in cases where the prospective jurors’ sexual assault experiences were more distant, and the prospective jurors did not indicate continuing trauma as a result of the experiences. See State v. Dennis, 8th Dist. No. 104742, 2018-Ohio-2723, ¶ 21; State v. Wallace, 8th Dist. No. 105123, 2017-Ohio-7322, ¶ 10-12.
{¶ 23} We recognize that sexual assault may result in continuing trauma for the victim for a very long time. We further recognize that continuing trauma may not be apparent to an outside observer. We consider this very carefully. Our concern is whether continuing trauma would prevent a juror from being fair and impartial. It is not a question of whether there is an indication of continuing trauma but, rather, whether continuing trauma prevents a juror from being fair and impartial.
{¶ 24} Unlike Zerla, in the present case, none of the prospective jurors indicated that continuing trauma would prevent them from being fair and impartial. Prospective Juror 4, Prospective Juror 5, and Prospective Juror 15 shared information regarding their prior experiences with sexual assault with the trial court and counsel. All four prospective jurors at issue indicated they could be fair and impartial, notwithstanding their prior experiences as victims of sexual assault. As explained above, we give deference to the trial court‘s ability to see and hear a prospective juror during voir dire and the effect of those observations in evaluating the prospective juror‘s ability to be fair and impartial. Under the circumstances presented in this case, the trial court did not act unreasonably, arbitrarily or unconscionably in denying appellant‘s challenges for cause of Prospective Juror 5 and
{¶ 25} Although appellant does not expressly reach this far in his arguments on appeal, we note that his reasoning suggests a per se rule excluding victims of sexual assault from serving as jurors in cases involving sexual assault. We do not find such a rule to be supported by Ohio law. Even in Zerla, this court declined to adopt such a categorical rule. See Zerla (“We do not mean to imply that all rape victims are presumed to be biased.“). We further note that courts in other states have declined to adopt similar categorical juror exclusions in sexual assault cases. See, e.g., State v. Erickson, 227 Wis.2d 758, 777 (1999) (“Likewise, we find no merit to Erickson‘s second assertion that because of Juror L‘s own sexual assault, a reasonable person in her position could not be fair and impartial. Erickson‘s assertion comes close to arguing that any victim of sexual assault, at least if the assault occurred while the victim was a child, must be categorically excluded from serving on his jury. We have been ‘repeatedly reluctant to exclude groups of persons from serving as petit jurors as a matter of law.’ ” (Internal citation omitted.)); Vay v. Commonwealth, 67 Va.App. 236, 262 (2017) (“Although disclaiming that he is seeking such a rule, appellant essentially asks us to find that a person affiliated with women and gender studies in a university setting can never fairly sit as a juror in a sexual assault case in which the defendant is a male. Nothing in Virginia law supports such a per se disqualification rule, and we decline to adopt such a rule here.“). We believe trial courts can effectively exercise their discretion on a case-by-case basis to evaluate any implicit bias arising from a prospective juror‘s experience as a victim of any crime, including sexual assault.
4. Summary of jury selection claims
{¶ 26} Appellant fails to demonstrate a valid constitutional claim because he cannot establish bias among the members of the jury that ultimately found him guilty. He also fails to demonstrate a valid claim under state law because he cannot establish an abuse of discretion or plain error by the trial court in refusing to remove certain prospective jurors for cause.
{¶ 27} Accordingly, we overrule appellant‘s first assignment of error.
B. Ineffective assistance of counsel in plea negotiations
{¶ 28} Appellant argues in his second assignment of error that he was denied effective assistance of counsel during plea negotiations. Appellant claims this court can presume ineffective assistance in this case because the record is devoid of evidence regarding the state‘s plea offer to appellant. Appellant asserts that due to the fact he did not speak English, and had limited education and prior contact with the court system, his trial counsel had an affirmative duty to ensure that the terms of the state‘s plea offer were placed on the record by a qualified interpreter.
{¶ 29} We apply a two-part test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989). “First, the defendant must show that counsel‘s performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland at 687. In the context of a rejected plea offer, an individual asserting ineffective assistance must demonstrate a reasonable probability he would have accepted the plea if he had received effective assistance of counsel. State v. Phipps, 10th Dist. No. 14AP-545, 2015-Ohio-3042, ¶ 11, citing Missouri v. Frye, 566 U.S. 134, 148 (2012).
{¶ 30} The record in this case indicates there was no formal plea agreement offered to appellant. Prior to jury selection, the following exchange occurred between the trial court and counsel:
THE COURT: So that the record is clear, it is the Court‘s understanding that there were conversations between counsel regarding a negotiated plea offer and potential resolution of this matter; is that correct, Ms. Rausch?
MS. RAUSCH [prosecutor]: Yes, Your Honor.
THE COURT: And it is my understanding through conversations with counsel on both sides that there is no negotiated plea offer; is that correct? MS. RAUSCH: That is correct, Your Honor.
THE COURT: Ms. Kaiser, is that correct?
MS. KAISER [appellant‘s trial counsel]: That is correct, Your Honor.
(Feb. 11, 2019 Tr. at 4.) Thus, the record indicates there were preliminary discussions between counsel regarding the possibility of a negotiated plea offer. There is no indication those discussions progressed to the point that any formal plea offer was made. Under these circumstances, where there is no evidence of any actual offer to be accepted or rejected, appellant cannot establish ineffective assistance of counsel with respect to advice about whether to accept or reject a plea offer.
{¶ 31} Moreover, we note that appellant‘s suggestion that this court can presume ineffective assistance of counsel in this case because appellant‘s trial counsel did not put on the record any details of preliminary plea discussions is contrary to our precedent. Generally, a licensed attorney in Ohio is presumed to be competent and trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Jones, 10th Dist. No. 16AP-803, 2017-Ohio-5529, ¶ 11. Further, to the extent appellant suggests his trial counsel was ineffective by failing to communicate the details of any preliminary plea discussions with him, he relies on matters outside the record and such a claim would not be appropriate on direct appeal. See State v. Davis, 10th Dist. No. 05AP-193, 2006-Ohio-5039, ¶ 19 (“When allegations of ineffective assistance of counsel hinge on facts not appearing in the record, the proper remedy is a petition for post-conviction relief rather than a direct appeal.“).
{¶ 32} Accordingly, we overrule appellant‘s second assignment of error.
C. Trial court‘s failure to determine appellant‘s understanding of plea offer
{¶ 33} Appellant claims in his third assignment of error the trial court erred by failing to ensure he knowingly, voluntarily, and intelligently rejected any plea offer. Appellant asserts the trial court‘s discussion with counsel prior to jury selection was perfunctory and failed to establish that appellant understood the implications of proceeding to trial. Appellant argues that given his limited education and language barrier,
{¶ 34} Appellant‘s trial counsel did not proffer additional details about the preliminary plea discussions and did not object to proceeding with jury selection without putting more details on the record. Thus, any asserted error by the trial court is subject to plain error review. As explained above, the record reflects that, at most, there were preliminary discussions between the prosecutor and appellant‘s trial counsel, and that those discussions did not advance to the stage of a negotiated plea offer. Thus, there was no offer extended to appellant and, correspondingly, no duty on the trial court to ensure appellant understood the implications of accepting or rejecting an offer. Under these circumstances, we cannot conclude the trial court committed plain error by failing to ensure on the record that appellant understood the details of any ultimately unfruitful preliminary discussions his trial counsel had with the prosecutor.
{¶ 35} Accordingly, we overrule appellant‘s third assignment of error.
D. Weight of the evidence
{¶ 36} In his fourth assignment of error, appellant asserts the jury‘s verdicts were against the manifest weight of the evidence. Appellant recites the legal standard for review of a jury verdict as being against the manifest weight of the evidence in his brief but fails to set forth any specific argument explaining why the verdicts were against the manifest weight of the evidence. Instead, appellant requests this court review the trial transcript to determine whether the offenses were proved.
{¶ 37} “[T]he burden of affirmatively demonstrating error on appeal rests with the party asserting error.” State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 94 (10th Dist.).
{¶ 38} Notwithstanding appellant‘s failure to set forth a specific argument in support of this assignment of error, having reviewed the record, as summarized in paragraphs 2-8 supra, we find the verdicts were supported by the manifest weight of the evidence.
{¶ 39} Accordingly, we overrule appellant‘s fourth assignment of error.
IV. Conclusion
{¶ 40} For the following reasons, we overrule appellant‘s four assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER J., concurs.
BRUNNER, J., concurs in part and dissents in part.
BRUNNER, J., concurring in part and dissenting in part.
{¶ 41} I concur with the majority in its decision overruling the second, third, and fourth assignments of error, but I respectfully dissent from the majority‘s decision overruling the first assignment of error and, as a result, I would reverse and remand this case for a new trial. The facts of this case are extremely disturbing and this is an extremely close case on review.
{¶ 42} In my view, the trial court should have granted the defendant‘s motion for cause as to Prospective Juror 5, whose past experience included sexual assault by a relative, more closely factually aligned with the issues for trial, or the trial court should have pursued further questioning of the juror regarding the extent of trauma experienced and remaining, consistent with this court‘s holding in State v. Zerla, 10th Dist. No. 91AP-652, 1992 WL 55433, 1992 Ohio App. LEXIS 1280 (Mar. 17, 1992). Later caselaw from the Eighth District
Here, as in [State v.] Mundy, [99 Ohio App.3d 275, 298 (2d Dist.1994)] Juror No. 3 was not still actively recovering from her experience with her ex-husband. In fact, she stated that she had healed from the experience and did not hold any animosity toward her ex-husband. Unlike Zerla, there is nothing in the record demonstrating a “substantial risk” that Juror No. 3 would identify herself emotionally with the victim and against the defendant. Zerla, 10th Dist. Franklin No. 91AP-562, 1992 Ohio App. LEXIS 1280 at *7.
(Emphasis added.) State v. Wallace, 8th Dist. No. 105123, 2017-Ohio-7322, ¶ 14. In further discussing Mundy, the Eighth District noted that “the sexual assault was not recent, and that at the time of trial, the jurors were not receiving counseling related to the sexual assault or ‘still actively engaged in the process of recovering from their experience.’ [Mundy] at 298.” Wallace at ¶ 13. Wallace is not our precedent. Zerla is. We stated in Zerla:
[W]here the facts establishing bias or interest are uncontroverted and the only conclusion that may be legally drawn is one of bias, the refusal to excuse the challenged juror constitutes an abuse of discretion warranting reversal.
(Citations omitted.) Zerla at *5. Moreover, the record does not provide assurance that the trial court adequately questioned this juror about the similarity of her experience with the facts at issue. We require that “the court should not blindly accept the juror‘s pledge that he or she will render a fair and impartial verdict.” Zerla at *6. We also stated:
Under the Ohio and United States Constitutions, the accused is entitled to a jury composed of impartial and unbiased jurors. Murphy v. Florida (1975), 421 U.S. 794, 799; Lingafelter [v. Moore, 95 Ohio St. 384 (1917)], paragraph two of the syllabus. For this reason, any substantial doubts with respect to a juror‘s impartiality must be resolved in favor of the accused. Whether or not the juror conscientiously believes that he or she can act impartially, the court should sustain the challenge if, under the circumstances, the juror cannot realistically be considered impartial and indifferent.
(Emphasis added.) Zerla at *6-7. The trial court should have inquired further of Prospective Juror 5‘s circumstances, which by their nature give rise to substantial doubts about her impartiality; absent questioning about these issues, the trial court should have
{¶ 43} The majority makes note of the fact that appellant‘s trial counsel did not ask any specific questions about these prospective jurors’ sexual assault experiences during their voir dire. The majority also notes the incompleteness of the record in that it lacks the juror questionnaires, which could shed light on how information contained within those questionnaires may have influenced the trial court‘s decision to deny appellant‘s challenge for cause of Prospective Juror 5.
{¶ 44} Appellant‘s trial counsel‘s decision not to ask specific questions of Prospective Juror 5, to my view, is a trial tactic. “Voir dire is largely a matter of strategy and tactics.” State v. Miller, 12th Dist. No. CA2009-04-106, 2010-Ohio-1722, ¶ 33, citing State v. Keith, 79 Ohio St.3d 514, 521 (1997); State v. Cruz, 12th Dist. No. CA2012-03-059, 2013-Ohio-215, ¶ 40. There are a myriad of reasons why counsel would not single out this prospective juror, including concern that counsel could be viewed by the rest of the jury as not sensitive to Prospective Juror 5‘s circumstances. Or there may have been concern that if counsel for appellant was perceived by the jury as questioning these individuals too intensely, if another prospective juror had similar circumstances, they might not be forthcoming about them for fear of being questioned extensively about them in the presence of other potential jury members. Since the motion was for cause, the trial court could have further questioned the witness outside of the hearing of the rest of the jury, but it did not do this and, instead, required that appellant use a peremptory challenge to accomplish what appellant should have been able to accomplish by a challenge granted for cause.
{¶ 45} While the majority points out that appellant ultimately did not face a jury with the kind of bias that was the basis for his motion for cause, appellant was constrained to use all of his peremptory writs to ensure that the jury would be free from someone with a background such as Prospective Juror 5, whose experiences were uncannily close to the actions for which appellant was on trial. And because the trial court did not supply the jury questionnaires with the record, we cannot assume that appellant faced no other prejudice in the makeup of the jury once his peremptory challenges were exhausted. See
{¶ 46}
{¶ 47} The majority states in paragraphs 23 and 24:
We recognize that sexual assault may result in continuing trauma for the victim for a very long time. We further recognize that continuing trauma may not be apparent to an outside observer. We consider this very carefully. Our concern is whether continuing trauma would prevent a juror from being fair and impartial. It is not a question of whether there is an indication of continuing trauma, but rather whether continuing trauma prevents a juror from being fair and impartial.
Unlike Zerla, in the present case, none of the prospective jurors indicated that continuing trauma would prevent them from being fair and impartial. Prospective Juror 4, Prospective Juror 5, and Prospective Juror 15 shared information regarding their prior experiences with sexual assault with the trial court and counsel. All four prospective jurors at issue indicated they could be fair and impartial, notwithstanding their prior experiences as victims of sexual assault. As explained above, we give deference to the trial court‘s ability to see and hear a prospective juror during voir dire and the effect of those observations in evaluating the prospective juror‘s ability to be fair and impartial. Under the circumstances presented in this case, the trial court did not act unreasonably, arbitrarily, or unconscionably in denying appellant‘s challenges for cause of Prospective Juror 5.
“Often one‘s own bias arising from circumstances in which one is involved is a thing most difficult to realize.” Webster v. Fisher, 5th Dist. No. 76-CA-10, 1977 WL 200756, 1977 Ohio App. LEXIS 10279, *8 (May 11, 1977). Because of the similarities of the crime(s) Prospective
{¶ 48} Added to this, the circumstances of not having the jury questionnaires make it difficult to impossible to test the trial court‘s use of its discretion in denying appellant‘s motion for cause with respect to Prospective Juror 5. We cannot assume constitutionality without the ability to at least examine the jury questionnaires to ensure the efficacy of the trial court‘s ruling in denying appellant‘s challenge for cause as to Prospective Juror 5, being required to “consider the merits of the denial of a for cause challenge.” (Citations omitted.) Cruz at ¶ 28.
{¶ 49} The selection of a fair jury of one‘s peers is critical to a constitutionally fair criminal trial, according to the Sixth Amendment to the U.S. Constitution as well as the requirements of procedural due process as provided in the Fourteenth and perhaps the Fifth Amendments thereto. Because the record does not contain jurors’ questionnaires to test the trial court‘s rulings in voir dire against the record, and because the trial court should not have denied appellant‘s motion for cause, based on the close nature of the allegations to Prospective Juror 5‘s own personal experiences and did not at least inquire further, I would apply Zerla and find that appellant‘s trial lacked the constitutional underpinnings for a fair trial, reversing and remanding to the trial court with instructions to hold a new trial.