[Cite as State v. Oliver, 2021-Ohio-606.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DARRION OLIVER 

Defendant-Appellant 

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Appellate Case No. 28774 

Trial Court Case No. 2018-CR-2905 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 5th day of March, 2021. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

Attorney for Plaintiff-Appellee 

 

JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite 

1818, Dayton, Ohio 45402 

 Attorney for Defendant-Appellant 

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DONOVAN, J. 
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{¶ 1} Darrion Oliver appeals from the trial court’s judgment convicting him of two 

counts of rape, with violent offender specifications. Oliver was sentenced to two 

mandatory prison terms of ten years each on the rapes, to be served concurrently, to 

three additional years on the repeat violent offender specifications, to be served 

consecutively to the other sentences, and he was designated a Tier III sex offender. 

{¶ 2} On August 2, 2018, Oliver was indicted on two counts of rape (by force or 

threat or force) and one count of kidnapping (sexual activity), all with repeat violent 

offender specifications (the “A” Indictment). Oliver pled not guilty. On August 31, 2018, 

a “B” Indictment was issued with 14 additional counts and additional specifications. 

{¶ 3} On October 10, 2018, Oliver filed a motion to suppress, which the court 

subsequently overruled. On December 24, 2018, he filed a motion for relief from 

prejudicial joinder, which requested that the court try the “A” and “B” indictments 

separately. The court granted this motion and set the “A” indictment for trial. 

{¶ 4} Oliver was tried in March 2019. The record reflects that all prospective 

jurors were sworn in prior to the start of voir dire. After the prosecutor introduced 

Detective Zachary Williams of the Dayton Police Department as the State’s 

representative, one prospective juror, “Mr. K.”, indicated that he knew Det. Williams “in 

passing” because the juror was retired from the Dayton police department. 

{¶ 5} At the start of voir dire by the parties, the trial court indicated that only the 

jurors “seated in the jury box and in the chairs inside the rail” should answer their 

questions, and that those prospective jurors “seated in back of the rail [and] in the 

spectator section” should not respond at that time. However, the court advised those 

jurors who were not to respond immediately to “pay attention and listen carefully” so that 
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if they were called upon, they would be in a position to respond without the parties and 

the court having “to repeat all that ha[d] proceeded.” 

{¶ 6} After voir dire concluded, the court recessed for jury selection. The court 

advised the parties that, with respect to challenges for cause, all of the prospective jurors 

would be “under consideration,” and that each side had four peremptory challenges. The 

court further explained that there would be one alternate juror, for a total of 13 jurors to 

be selected, and each side would have one peremptory challenge with respect to the 

alternate juror. 

{¶ 7} The record reflects that five prospective jurors (Juror Nos. 1, 3, 6, 14, and 

20) were removed for cause. Thereafter, in alternating turns beginning with the State, the 

parties exercised three peremptory challenges each. The following exchange then 

occurred: 

THE COURT: * * * State of Ohio has one more peremptory 

challenge with respect to the 12 actual jurors. Do you wish to exercise it? 

* * * 

[THE PROSECUTOR]: Should the State pass and the Defendant 

exercise their final one, putting the current alternate * * * into the 12, would 

we still be able to voir dire that person at this point? So we would be able 

to re-voir dire anybody that’s not in the first 23 regardless? 

THE COURT: Yeah. 

[THE PROSECUTOR]: We’ll pass our last. 

THE COURT: Defense has one remaining peremptory challenge; 

do you wish to exercise it? 
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[DEFENSE COUNSEL]: If we exercise it, Your Honor, can I still ask 

questions even if I don’t have any challenges left? 

THE COURT: Can you - - yeah. Anybody that’s on there that we 

haven’t voir dired is subject to being voir dired. 

[DEFENSE COUNSEL]: * * * I just wanted to double check. I 

would move to strike - - 

THE COURT: Now, wait. I didn’t - - I guess I’m going to qualify 

that. They can only then be challenged for cause. You’ve got no more 

peremptories. 

* * * 

[DEFENSE COUNSEL]: It would only be a cause challenge. I 

think everybody understands that, right? 

[THE PROSECUTOR]: But we would have a peremptory on the 

alternates, still? 

THE COURT: Yeah, you still have your alternate. 

* * * 

THE COURT: But it’s related to - - we’re probably going to - - we 

may have another person, such as [Mr. K.] * * * who would jump into that 

alternate spot. 

 [DEFENSE COUNSEL]: * * * Understood. We would strike - - Mr. 

[P.] [who] is now sitting at Number 7, I believe. 

{¶ 8} After defense counsel exercised his fourth and final peremptory challenge to 

the panel of 12, Ms. W. took position number 7. Ms. W. was thereafter excused for cause 
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under Crim.R. 24(B)(13) by agreement of both parties. The court explained that Mr. K. 

then became Juror Number 7, but subject to voir dire, and that the alternate spot remained 

to be filled. The following exchange occurred with Mr. K: 

[THE PROSECUTOR]: * * * [Mr. K.], based on your responses in 

your questionnaire you gave me, which I have in front of me, I take it you’re 

now a retired Dayton police officer? 

MR. [K.]: That’s correct. 

[THE PROSECUTOR]: * * * And you put some responses in here. 

Do you mind if I ask you about those out loud, or would you like to talk to 

him up at the bench? 

MR. [K.]: It makes no difference. 

* * * 

[THE PROSECUTOR]: * * * And this response may be old, because 

I think you’ve been summoned before, but you said you would not make a 

good juror because of your law enforcement experience? 

MR. [K.]: Well, partially. 

[THE PROSECUTOR]: * * * Do I take that to mean that you could 

not be fair and impartial to - - 

MR. [K.]: No. 

[THE PROSECUTOR]: - - sit here with the jury? 

MR. [K]: That’s not what I meant. 

[THE PROSECUTOR]: * * * What did you mean? 

MR. [K.]: I apparently misunderstood the question. 
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* * * 

MR. [K]: I just thought it was asking if I had any prior experience. 

* * * 

MR. [K.]: I’ve been on a jury before. 

[THE PROSECUTOR]: * * * And things get lost in translation; 

that’s just why I’m asking, and this is kind of a unique perspective because 

we have a little smaller pool to talk to now. Given your experience as a 

police officer, you believe you could be fair and impartial to sit as a juror in 

this case? 

MR. [K.]: Sure. 

[THE PROSECUTOR]: * * * And nothing that we’ve - - any questions 

I was asking anybody earlier that you have responses for that you want to 

talk about, such as sexual assault experience, or anything of that kind? 

MR. [K.]: No. 

* * * 

THE COURT: Any challenge of Mr. [K.] for cause? 

[THE PROSECUTOR]: The State doesn’t have any. 

[DEFENSE COUNSEL]: I don’t think I have grounds to do it. He 

says he’s going to be fair and impartial. 

{¶ 9} At the conclusion of the trial, the court instructed the jurors that their first 

function in the jury room would be to select a foreperson. The court further advised the 

jury as follows: 

* * * The person you select to preside over your deliberations does 
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not have any greater power, nor does that person’s vote have any more 

importance than others. 

 He or she serves the purpose of helping to conduct your 

deliberations in an orderly manner and to give each of you the opportunity 

to express your opinion. * * * 

 * * * 

 Consult with one another in the jury room with a view to reaching an 

agreement, if you can do so without disturbing your individual judgment. 

Each of you must decide this case for yourself. You should do so, 

however, only after a discussion of the case with the other jurors. Do not 

hesitate to change an opinion if convinced that it is wrong. However, you 

should not surrender your considered opinion concerning the weight of the 

evidence in order to be congenial or to reach a verdict solely because of the 

opinions or opinion of other jurors. 

{¶ 10} When the jury reached its verdicts, the court read the verdicts for each count 

aloud, confirming with the foreperson that each one was read correctly. The court 

indicated that it would announce its decision on the repeat violent offender specifications 

at the upcoming scheduling conference on April 1, 2019. On that day, the court indicated 

that it found Oliver guilty of the repeat violent offender specifications with respect to each 

count. 

{¶ 11} In his brief,1 Oliver asserts two assignments of error. His first assignment

 

1 We note that much of the text in Oliver’s 15-page brief is single-spaced. App.R. 19 

requires double line spacing for briefs. 
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of error is as follows: 

THE TRIAL COURT COMMITTED PLAIN ERROR IN THE MANNER 

THAT IT CONDUCTED JURY SELECTION IN THAT JURORS WERE 

SEATED IN THE PANEL WHO WERE NOT SUBJECT TO VOIR DIRE 

PRIOR TO THE PARTIES BEING REQUIRED TO EXERCISE 

PEREMPTORY CHALLENGES. 

{¶ 12} According to Oliver, due to the manner in which the jury selection process 

was conducted, defense counsel was able to voir dire Mr. K. only when he became one 

of the 12 members of the jury, and he “was not voir dired in such a way as counsel was 

permitted to exercise a peremptory challenge on him.” Oliver asserts that, because of 

Mr. K.’s background as a police officer and “his statement that he would not make a good 

juror because of his law enforcement experience,” he “would have been a most obvious 

target for the exercise of a peremptory challenge.” Oliver also asserts that, because Mr. 

K. “was not subjected to voir dire” until after the defense’s peremptory challenges had 

been exhausted, Mr. K. “was left on the jury without benefit of voir dire.” He further 

contends that the “unfairness of the process was exacerbated by the fact that [Mr. K.] 

ultimately became the foreperson for the jury.”2 Oliver contends that the jury selection 

process “was not done properly and resulted in significant prejudice” to him. Further, he 

contends that the error was plain error pursuant to Crim.R. 52(B). 

 

2 In his brief, Oliver’s attorney indicated that he intended to put the fact that Mr. K. became 

the jury foreperson into the record “pursuant to App.R. 9(E) when given the opportunity 

to supplement the record.” Defense counsel moved to supplement the record with an 

affidavit from Oliver, which stated that, when the verdict was announced, he became 

aware that Mr. K. was the foreperson of the jury. We overruled the motion, since Oliver’s 

affidavit was not before the trial court for consideration during the underlying proceedings. 

See Decision and Entry, October 21, 2020. 
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{¶ 13} Oliver further asserts that “reasonable examination would include the 

opportunity to voir dire a prospective juror prior to the court requiring the parties to 

exercise their peremptory challenges,” because failure to do so could result in the 

placement of a juror on the jury without the benefit of voir dire prior to the exercise of 

peremptory challenges. In other words, Oliver argues that “100% of the prospective 

jurors should have been voir dired by counsel” before the court requiring counsel to 

exercise peremptory challenges. 

{¶ 14} We note that Oliver failed to object to the selection process in the trial court. 

As we have noted: 

It is well-settled that failure to object waives all but plain error. State 

v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 

(2d Dist.), citing McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-

Ohio-5128. “Plain error exists ‘if the trial outcome would clearly have been 

different, absent the alleged error in the trial court proceedings.’ ” Id., citing 

State v. Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-Ohio-5399. 

State v. Kessel, 2019-Ohio-1381, 133 N.E.3d 1086, ¶ 33 (2d Dist.). 

{¶ 15} We conclude that Oliver has not demonstrated plain error or error of any 

sort. The use of peremptory challenges began after five challenges for cause were 

utilized; at that point, there were 12 jurors in the box, and 5 jurors from inside the front rail 

were seated within the 12. These five had been subject to voir dire originally. As the 

State points out, jury selection for a criminal trial is generally governed by Crim.R. 24 and 

R.C. 2945.21 et seq. Crim.R. 24(B) provides: 

Any person called as a prospective juror for the trial of any cause 
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shall be examined under oath or upon affirmation as to the prospective 

juror's qualifications. The court may permit the attorney for the defendant, 

or the defendant if appearing pro se, and the attorney for the state to 

conduct the examination of the prospective jurors or may itself conduct the 

examination. In the latter event, the court shall permit the state and 

defense to supplement the examination by further inquiry. Nothing in this 

rule shall limit the court's discretion, with timely notice to the parties at 

anytime prior to trial, to allow the examination of all prospective jurors in the 

array or, in the alternative, to permit individual examination o[f] each 

prospective juror seated on a panel, prior to any challenges for cause or 

peremptory challenges. 

{¶ 16} Crim.R. 24(C) governs the challenge of jurors for cause. See also R.C. 

2313.17 (Examination of jurors; causes for challenge); R.C. 2945.25 (Causes of 

challenging of jurors). 

{¶ 17} Crim.R. 24(D) governs peremptory challenges; it states: “In addition to 

challenges provided in division (C) of this rule, if there is one defendant, each party 

peremptorily may challenge * * * four prospective jurors in felony cases other than capital 

cases * * *.” “Peremptory challenges shall be exercised alternately, with the first 

challenge exercised by the state. The failure of a party to exercise a peremptory 

challenge constitutes a waiver of that challenge, but does not constitute a waiver of any 

subsequent challenge.” Crim.R. 24(E). “Except by agreement, neither the state nor the 

defendant shall be required to exercise any peremptory challenge until twelve jurors have 

been passed for cause and are in the panel.” R.C. 2945.23. 
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{¶ 18} Finally, Crim.R. 24 (G)(1) provides in part that each “party is entitled to one 

peremptory challenge in addition to those otherwise allowed if one or two alternate jurors 

are to be impaneled * * *.” 

{¶ 19} The record reflects that, while counsel for the parties initially addressed their 

questions to the prospective jurors seated in the jury box and in front of the rail (the first 

23 jurors), all of the potential jurors, including Mr. K., were in the courtroom and heard the 

initial voir dire. While the court advised the prospective jurors beyond the initial 23 not 

to respond to questions, the court instructed them to “pay attention and listen carefully so 

that if you are called upon, you will be in a position to respond without our having to repeat 

all that has proceeded.” 

{¶ 20} Five jurors were excused for cause prior to the use of any peremptory 

challenges. Then the State, in alternating turns with Oliver, exercised three peremptory 

challenges and passed on using the fourth peremptory challenge. Before Oliver 

exercised his fourth and final peremptory challenge, the trial court advised the parties that 

any juror “that’s on there that we haven’t voir dired is subject to being voir dired.” The 

court further clarified that, in the event Oliver exhausted his peremptory challenges, 

additional jurors could only be challenged for cause, because he would have no more 

peremptory challenges. Oliver’s attorney indicated his understanding of this fact. Oliver 

then exercised his final peremptory challenge on Mr. P. After all peremptory challenges 

were completed, Ms. W. became Juror Number 7 but was then excused for cause, which 

resulted in Mr. K. becoming Juror Number 7 and subject to voir dire. After the additional 

voir dire of Mr. K., counsel for Oliver indicated that he had no grounds to challenge Mr. K. 

for cause, because Mr. K. had said he could be fair and impartial. 
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{¶ 21} Oliver was not denied the opportunity to exercise a peremptory challenge 

as to Mr. K. When Mr. K. became a seated juror, Oliver had exhausted his peremptory 

challenges. “Decisions on the exercise of peremptory challenges are a part of trial 

strategy.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 264, 

citing State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 99. 

Oliver was aware of Mr. K.’s employment history prior to the commencement of voir dire 

by the parties, since Mr. K. advised the court about his employment history before voir 

dire commenced. Oliver asserts, “any competent defense counsel would have 

immediately utilized a peremptory challenge on [Mr.K.] had they been given the 

opportunity to do so.” However, Oliver could have requested the opportunity to voir dire 

more jurors for cause, including Mr. K., before exercising his final preemptory challenge. 

{¶ 22} Finally, regardless of whether or not Mr. K. was selected as the foreperson, 

the trial court advised the jury that the foreperson “does not have any greater power, nor 

does that person’s vote have any more importance than others.” The court advised the 

jurors that they each must decide the case for themselves, and that “the foreperson will 

see that your discussions are orderly and that each juror has the opportunity to discuss 

the case and cast his or her vote. Otherwise, the authority of the foreperson is the same 

as any other juror.” “ ‘A trial jury is presumed to follow the instructions given to it by the 

judge.’ ” State v. Ferguson, 2d Dist. Clark No. 2010-CA-1, 2011-Ohio-6801, ¶ 42, quoting 

State v. Henderson, 39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988). Since there is no 

suggestion to the contrary, we presume the jury followed the court’s instructions. For the 

foregoing reasons, neither error nor plain error is demonstrated, and Oliver’s first 

assignment of error is overruled. 
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{¶ 23} In his second assignment of error, Oliver asserts: 

THE TRIAL COURT ERRED IN SENTENCING DEFENDANT ON 

THE REPEAT VIOLENT OFFENDER (RVO) SPECIFICATIONS WITHOUT 

ANNOUNCING A DECISION WITH RESPECT TO THOSE 

SPECIFICATIONS AND WITHOUT ENTERING A VERDICT ON THOSE 

SPECIFICATIONS. 

{¶ 24} Oliver asserts that the record in this case does not include any finding by 

the trial court that he was guilty of the repeat violent offender specifications, and thus that 

sentencing him on those specifications constituted error. 

{¶ 25} The trial court’s judgment entry of conviction stated in pertinent part: 

The Defendant was * * * brought before the court on March 30, 2020 for 

execution of the sentence, * * * HAVING BEEN FOUND GUILTY BY A 

JURY TO the following offense(s) in the A Indictment in CT 1: RAPE (By 

Force or Threat of Force)(F1), 2907.02(A)(2), with two (2) years Repeat 

Violent Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149, CT 2: 

RAPE (By Force or Threat of Force)(F1), with one (1) year Repeat 

Violent Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149, and CT 

3: KIDNAPPING (Sexual Activity)(F1), 2905.01(A)(4), Repeat Violent 

Offender Specification, R.C. 2929.14(D)(2)(a)/2941.149. 

(Emphasis sic.) This language incorrectly suggests that the jury, rather than the trial court, 

made the findings of guilt with respect to the RVO specifications. 

{¶ 26} On September 18, 2020, after Oliver’s brief was filed, the State filed a 

motion to supplement the record with a transcript of the scheduling conference that 
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occurred on April 1, 2019, at which time the court announced its decision on the repeat 

violent offender specifications to Oliver’s offenses. This Court sustained the motion. 

{¶ 27} The State correctly points out that, in the course of the trial, outside of the 

presence of the jury, Detective Williams testified that Oliver had previously been convicted 

of three felony offenses in Montgomery C.P. No. 2005-CR-3889: one count of 

endangering children, a felony of the second degree; one count of endangering children, 

a felony of the third degree; and one count of involuntary manslaughter, a felony of the 

first degree. The State correctly asserts that both the first- and second-degree felony 

offenses constituted offenses of violence pursuant to R.C. 2901.01(A)(9). 

{¶ 28} Further, while “a verdict for a jury trial must be in writing, there is no similar 

requirement for a bench trial in a criminal case.” R.C. 2945.171 states that, “[i]n all 

criminal cases the verdict of the jury shall be in writing and signed by each of the jurors 

concurring therein.” However, a case tried to the bench only requires the court “to make 

a general finding.” Crim.R. 23(C). The State asserts that, since “the trial court did in 

fact find Oliver guilty of the RVO specification on the record, the trial court did not err in 

sentencing Oliver on each of the two RVO specifications,” and that the trial court could 

issue a nunc pro tunc entry to reflect its finding of guilt on the RVO specifications. 

{¶ 29} In his reply brief, Oliver asserts that he was not, in fact, convicted of the 

RVO specifications, because the trial court failed to comply with Crim.R. 32(C). Crim.R. 

32(C) states: “A judgment of conviction shall set forth the fact of conviction and the 

sentence. * * * The judge shall sign the judgment and the clerk shall enter it on the journal. 

A judgment is effective only when entered on the journal by the clerk.” Oliver argues that 

the trial court did not sign the judgment with respect to the RVO specifications and the 
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clerk did not enter it on the journal, so the judgment was not effective. In response to 

the State’s argument that the error could be corrected through a nunc pro tunc entry, 

Oliver points out that the trial court has issued no such entry in this case. Finally, Oliver 

repeats his assertion that he was not properly sentenced on the repeat violent offender 

specifications because he was not properly convicted of those specifications. 

{¶ 30} Contrary to Oliver’s assertions, the record reflects that his judgment entry 

of conviction was electronically signed by the court and journalized. R.C. 2941.149 

provides: “The court shall determine the issue of whether an offender is a repeat violent 

offender.” As set forth above, the judgment entry of conviction suggested that the jury 

found him guilty not only of the offenses set forth in Counts 1-3, but also of the repeat 

violent offender specifications, when in fact the court found him guilty of the specifications 

at the April 1, 2019 scheduling conference, as required by R.C. 2941.149. 

{¶ 31} As this Court has noted: 

 “Crim.R. 36(A) permits trial courts to correct clerical mistakes in 

judgments or orders arising from oversight or omissions, using a nunc pro 

tunc entry.” (Citation omitted.) State v. Roach, 2d Dist. Montgomery No. 

23317, 2010-Ohio-566, ¶ 3. The use of a nunc pro tunc entry is limited to 

reflecting what the court actually decided but failed to properly include in its 

judgment. (Citations omitted.) State v. Ritchie, 2d Dist. Montgomery No. 

24088, 2011-Ohio-2566, ¶ 8. Its sole function is to correct a clerical 

mistake in the execution of a ministerial act. (Citations omitted.) Id. “ ‘The 

term “clerical mistake” refers to a mistake or omission, mechanical in nature 

and apparent on the record, which does not involve a legal decision or 
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judgment.’ ” State v. Arnold, 2d Dist. Montgomery No. 22856, 2009-Ohio3636, ¶ 57, quoting State v. Brown, 136 Ohio App.3d 816, 820, 737 N.E.2d 

1057 (3d Dist.2000). Therefore, “ ‘[t]he function of nunc pro tunc [entries] 

is not to change, modify, or correct erroneous judgments, but merely to have 

the record speak the truth.’ ” Ritchie at ¶ 10, quoting Ruby v. Wolf, 39 Ohio 

App. 144, 147, 177 N.E. 240 (8th Dist.1931). “A nunc pro tunc entry cannot 

be used to change something that was deliberately done.” (Citation 

omitted.) Id. 

State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729, 26983, 2019-Ohio-4897, ¶ 11. 

See also State v. Priest, 2d Dist. Montgomery No. 25896, 2014-Ohio-3843, ¶ 11, citing 

State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142 (“Where the 

manner of conviction was missing, the trial court could correct the omission by means of 

a nunc pro tunc entry.”) 

{¶ 32} Since the trial court’s judgment entry incorrectly suggests that the jury found 

him guilty of the RVO specifications, his assignment of error is sustained to that extent 

only. The matter will be remanded to the trial court for it to issue a nunc pro tunc entry 

clearly reflecting the manner of Oliver’s convictions on the repeat violent offender 

specifications. We further note that the court erroneously cited R.C. 2929.14(D)(2)(a) in 

connection with the repeat violent offender specifications, and there is no such section of 

the code relating to those specifications. It appears to this Court that the trial court 

intended to cite to R.C. 2929.14(B)(2)(a) in relation to the specifications. The trial court 

is further instructed to correct the erroneously-cited code section “R.C. 2929.14(D)(2)(a).” 

In all other respects, the judgment of the trial court will be affirmed. 
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. . . . . . . . . . . . . 

TUCKER, P.J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Heather N. Ketter 

Jeffrey R. McQuiston 

Hon. Timothy N. O’Connell