State v. ToddState v. Todd
APPEARANCES:
Samantha L. Berkhofer for Appellant
Alice Robinson-Bond for Appellee
{¶1} Defendant-appellant, Joseph W. Todd (“Todd“), appeals the April 18, 2018 judgment entry of sentence of the Logan County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case arises from a series of incidents occurring between May 2004 and October 2007 in which Todd allegedly engaged in sexual conduct with A.R. and X.R., each of whom was younger than ten years old at the time of the alleged incidents. (See Doc. Nos. 2, 38). On September 12, 2017, the Logan County Grand Jury indicted Todd on Counts One through Four of rape in violation of
{¶3} A jury trial was held on February 22-23, 2018. (Feb. 22-23, 2018 Tr., Vol. I, at 1); (Feb. 22-23, 2018 Tr., Vol. III, at 343). (See Doc. No. 88). On February 23, 2018, the jury found Todd guilty of all four counts. (Feb. 22-23, 2018 Tr., Vol. IV, at 583-587); (Doc. Nos. 131, 132, 133, 134). The trial court filed its judgment entry of conviction on March 5, 2018. (Doc. No. 138).
{¶5} At a hearing on April 6, 2018, the trial court denied Todd‘s motion for a new trial and sentenced Todd to life imprisonment on each of Counts One and Two, to be served concurrently. (Apr. 6, 2018 Tr. at 3, 15, 52-56). (See Doc. Nos. 147, 148). The trial court also sentenced Todd to life imprisonment on each of Counts Three and Four, to be served concurrently. (Doc. No. 148). The trial court specified that Todd is eligible for parole on Counts One and Two after serving 10 years in prison and that he is eligible for parole on Counts Three and Four after serving 10 years in prison. (Id.). The trial court further ordered that Todd‘s concurrent life sentences on Counts One and Two be served consecutively to his concurrent life sentences on Counts Three and Four, resulting in an aggregate sentence of two life sentences with parole eligibility after 20-years imprisonment. (Id.). Finally, the trial court classified Todd as a sexual predator.1 (Id.). The trial
{¶6} On April 25, 2018, Todd filed a notice of appeal. (Doc. No. 156). He raises three assignments of error.
Assignment of Error No. I
Whether failure to have the defendant present during the vior [sic] dire possess [sic] was plain error?
{¶7} In his first assignment of error, Todd argues that the trial court‘s failure to ensure that he was present for the entire voir dire process is plain error. Specifically, Todd argues that he was absent from a portion of voir dire conducted in camera, that he had both a constitutional and a statutory right to be present during the entirety of voir dire, and that, due to this violation of his rights, his conviction and sentence should be vacated and a new trial ordered.
{¶8} “An accused has a fundamental right to be present at all stages of his criminal trial.” State v. Hamilton, 1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140, ¶ 30, citing
{¶9} “Errors of constitutional dimension are not ipso facto prejudicial.” Williams at 286. Rather, “error[s] of [a] constitutional stature, either state or federal” are deemed to be nonprejudicial if they are “‘harmless beyond a reasonable doubt.‘” Id., quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967) and citing State v. Abrams, 39 Ohio St.2d 53 (1974), paragraph two of the syllabus. “Particularly, as regards a defendant‘s constitutional right to be present at all stages of his trial, prejudicial error exists only where ‘a fair and just hearing * * * [is] thwarted by his absence.‘” Id., quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330 (1934) and citing United States v. Brown, 571 F.2d 980 (6th Cir.1978).
{¶10} Furthermore, to the extent that a defendant‘s absence from trial proceedings amounts to a violation of his statutory rights under
{¶11} Here, a portion of voir dire was conducted in camera and outside of Todd‘s presence. The trial court summarized the reasons for and the conduct of the in camera voir dire as follows:
4. * * * [I]n * * * case[s] involving crimes of a sexual nature, the Court * * * submit[s] questions to the panel of prospective jurors. These were not people sworn in but [they] answered questions related to sexual misconduct that might reveal bias. Defense counsel * * * stipulated that he requested this procedure and did filter and approve the questionnaire.
5. * * * [A]s the prospective jurors entered the courtroom they were given the supplemental questionnaire and seated at tables so they could privately answer the questionnaire. When completed, the completed questionnaires were given to the Clerk of Court.
* * * 7. * * * [P]rospective jurors who answered affirmatively to the supplemental questionnaire were individually brought into chambers. * * * The prospective jurors were given an oath to answer all questions truthfully before being asked about his or her affirmative answers to the supplemental questionnaire.
8. Defense counsel * * * made inquiry of the prospective jurors and at no time did he advise the Court that he wanted [Todd] present. [Defense counsel] did exercise challenges for cause[,] and * * * no peremptory challenges were allowed by either attorney.
9. * * * [Todd] was present in the courtroom some thirty (30) feet away and was available to be called into chambers by defense counsel.
(Doc. No. 147).
{¶12} It is undisputed that Todd was absent from the in camera phase of voir dire. Therefore, we must assume that the trial court‘s failure to ensure Todd‘s presence during this stage of his trial deprived him of his constitutional and statutory rights to be present. See Williams, 6 Ohio St.3d at 286. However, Todd‘s trial counsel did not insist that Todd be present for the in camera period of voir dire, and he did not object to Todd‘s absence. As a result, we review only whether Todd‘s exclusion from the in camera portion of voir dire constitutes plain error. See State
{¶13} We recognize plain error “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.‘” State v. Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Under the plain-error standard, the appellant must demonstrate that the outcome of his trial would clearly have been different but for the trial court‘s errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland, 50 Ohio St.3d 58 (1990).
{¶14} We conclude that Todd‘s exclusion from the in camera voir dire was nonprejudicial and harmless; thus, his absence does not amount to plain error. That is, Todd‘s absence from this stage of his trial proceedings did not deprive him of a fair and just trial. See Williams at 286. First, Todd‘s interests were vigorously protected by his attorney who was present during the in camera voir dire. See id. at 286-287; State v. Robinson, 2d Dist. Montgomery No. 17393, 2001 WL 62569, *14 (Jan. 26, 2001). His trial counsel actively examined the potential jurors and moved
{¶15} In addition, Todd‘s attendance at the in camera voir dire would likely have contributed little to his defense. See Williams, 6 Ohio St.3d at 287. The supplemental questionnaires submitted to the jury pool queried whether the potential jurors, members of the potential jurors’ families, relatives of the potential jurors, or friends of the potential jurors had been sexually abused, molested, sexually assaulted, or inappropriately touched as a child or as an adult. (See Supplemental Jury Questionnaires). Furthermore, the questionnaires asked whether the potential jurors or someone known by the potential jurors had ever been falsely accused of committing a crime, including a sex crime against an adult or a child. (See id.). During the in camera portion of voir dire, prospective jurors who responded affirmatively to these inquiries were individually questioned regarding their answers. (See Feb. 22-23, 2018 Tr., Vol. I, at 14-92).
{¶17} Moreover, there is no indication that Todd himself had been previously falsely accused of a crime known to any of the potential jurors or that he was the supposed victim of any of the crimes of which the potential jurors or a close relation of the potential jurors had been falsely accused. See id. Therefore, as Todd‘s own conduct was not at issue during the in camera voir dire, Todd did not possess any personal knowledge or special insight into the potential jurors’ experiences with sex crimes or false accusations such that his presence would have contributed meaningfully to his defense. See id.; State v. Brown, 8th Dist. Cuyahoga No. 68761, 1996 WL 86627, *11 (Feb. 29, 1996) (concluding that Brown‘s presence during the questioning of a juror would have contributed little to his defense because the questioning concerned matters that did not directly involve Brown); State v. Ogletree, 2d Dist. Montgomery No. 9768, 1987 WL 15731, *3 (Aug. 14, 1987) (concluding that Ogletree‘s presence at the questioning of a witness would have
{¶18} Finally, it appears from the record that Todd was physically present for the entirety of the voir dire conducted in open court. (See Feb. 22-23, 2018 Tr., Vol. I, at 105). Hence, Todd was able to listen to the questions posed to the entire jury pool, consult with his attorney regarding further challenges for cause based on the prospective jurors’ responses to these questions, and affect his trial counsel‘s use of peremptory challenges, including decisions concerning the use of peremptory challenges to excuse jurors that had participated in the in camera voir dire. Therefore, it is clear that Todd was afforded ample opportunity to influence the makeup of the jury irrespective of his absence during the in camera portion of voir dire.
{¶19} Accordingly, we conclude that the trial court‘s failure to secure Todd‘s presence at the in camera voir dire was nonprejudicial and harmless under both constitutional and statutory standards. See Williams, 6 Ohio St.3d at 287. Todd has not shown that his absence from the in camera phase of voir dire affected any of his substantial rights. See id. As a result, Todd has not demonstrated plain error.
{¶20} Todd‘s first assignment of error is overruled.
Assignment of Error No. II
Whether the trial court abused its discretion when it refused to allow a new trial?
{¶22} “Motions for a new trial are governed by
Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered * * * unless it is made to appear
by clear and convincing proof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein. Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered * * *. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
{¶23} “In order to file a motion for new trial after the expiration of the time periods specified in
{¶24} “A reviewing court will not disturb a trial court‘s decision granting or denying a
{¶25} Among the reasons offered for denying Todd‘s motion for a new trial, the trial court concluded that the “Motion for New Trial was untimely filed pursuant to
{¶27} The jury rendered its verdicts finding Todd guilty on February 23, 2018. (Doc. Nos. 131, 132, 133, 134). Thus, for his motion for a new trial to be considered timely filed, Todd was required to file his motion no later than March 9, 2018.
{¶28} However, rather than filing a motion for leave to file in advance of or together with a motion for a new trial, Todd filed only his motion for a new trial.
{¶29} Todd‘s second assignment of error is overruled.
Assignment of Error No. III
Whether defense counsel‘s failure to request the defendant to be present during vior [sic] dire was ineffective assistance of counsel?
{¶30} From the face of his third assignment of error, Todd appears to argue that, because of his trial counsel‘s failure to object to his exclusion from the in camera voir dire, he received ineffective assistance of counsel. However, on examination of the arguments contained under the heading of Todd‘s third assignment of error, it is clear that he is not actually arguing that his trial counsel was ineffective. Rather, Todd claims that his trial counsel‘s failure “to request the defendant be present during vior [sic] dire was not ineffective assistance of counsel.” (Emphasis added.) (Appellant‘s Brief at 5). This statement does not appear to be accidental as Todd continues: “In the case at hand, [Todd‘s trial counsel] did fail to directly ask for [Todd] to be present during voir dire. However, this did not rise to being a substantial violation of defense counsel‘s essential duties.” (Id.). According to Todd, because “defense counsel was not required to request that [Todd] be brought into the court room prior to vior [sic] dire,” Todd‘s
{¶31}
{¶32} In this case, rather than setting forth an argument that his trial counsel was ineffective and supporting that argument with legal authority and citations to the record as he is required to do, Todd does precisely the opposite—he expressly argues that his trial counsel was not ineffective. In doing so, Todd does not allege any error and thus necessarily fails to identify in the record the error on which he bases his assignment of error as required by the Rules of Appellate Procedure. To the extent that Todd‘s trial counsel may have been ineffective, we decline to pore through the record in order to create that argument for Todd. See State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 37 (“If an argument exists that can
{¶33} Todd‘s third assignment of error is overruled.
{¶34} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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