[Cite as State v. Griffin, 2012-Ohio-503.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24001 

vs. : T.C. CASE NO. 09CR1117/3 

DE’ARGO GRIFFIN : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 10th day of February, 2012. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst. 

Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton, 

Ohio 45422 

Attorneys for Plaintiff-Appellee 

Kent J. Depoorter, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower 

Level, Dayton, Ohio 45459 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, De’Argo Griffin, appeals from his convictions 

and sentences for possession of heroin, possession of criminal 

tools, and engaging in a pattern of corrupt activity, 

{¶ 2} On April 10, 2009, Defendant and two co-defendants, 
2

Anthony Franklin and Deshawn Foster, were indicted on one count 

of possessing of heroin, between ten and fifty grams, in violation 

of R.C. 2925.11(A). Defendant filed a motion seeking a separate 

trial from that of his co-defendants. On October 26, 2009, 

Defendant and his two co-defendants were indicted on additional 

charges: five counts of possessing criminal tools, R.C. 2923.24(A), 

and one count of engaging in a pattern of corrupt activity, R.C. 

2923.32(A)(1), based upon multiple acts of possessing and selling 

crack cocaine and heroin between May 13, 2006 and April 2, 2009. 

 Defendant filed an amended motion for a separate trial. The 

motion was denied. The court set a trial date of March 1, 2010. 

{¶ 3} On February 23, 2010, Attorney William Daly entered his 

appearance as co-counsel for Defendant. Three days later, on 

February 26, 2010, Attorney Daley filed a motion on behalf of 

Defendant to relieve court-appointed counsel J. Allen Wilmes as 

counsel for Defendant, to substitute Attorney Daley as counsel 

for Defendant, and to continue the trial. The trial court 

overruled Defendant’s motion on March 1, 2010, following a hearing. 

{¶ 4} Defendant Griffin and co-defendant Franklin were tried 

together before a jury beginning on or about March 2, 2010. 

Co-defendant Foster had entered pleas of guilty before trial. 

Defendant filed a pro se motion renewing his request for 

substitution of counsel and a continuance of the trial so that 
3

Attorney Daley could represent him. The trial court denied 

Defendant’s motion. Following a jury trial, Defendant was found 

guilty of all charges. The trial court sentenced Defendant to 

concurrent prison terms totaling five years and a fifteen thousand 

dollar fine. 

{¶ 5} Defendant timely appealed to this court from his 

conviction and sentence. 

FIRST ASSIGNMENT OF ERROR

{¶ 6} “APPELLANT’S CONVICTION UNDER R.C.2923.32(A)(1), 

ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, MUST BE REVERSED BECAUSE 

INSUFFICIENCIES IN THE INDICTMENTS RENDER THE CONVICTION VOID FOR 

LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO CHARGE AN 

OFFENSE.” 

{¶ 7} Defendant argues that the indictment is defective 

because it fails to allege each specific corrupt activity or offense 

in which Defendant participated that make up the Engaging in a 

Pattern of Corrupt Activity charge in violation of R.C. 

2923.32(A)(1). We addressed this same argument in the appeal of 

Defendant’s co-defendant, Anthony Franklin, and concluded that 

the indictment charging Engaging in a Pattern of Corrupt Activity 

in the words of the applicable statute, R.C. 2923.32(A)(1), is 

not defective because it fails to specify each corrupt activity 

in which Defendant is alleged to have participated. State v. 
4

Franklin, 2nd Dist., Montgomery App. Nos. 24011, 24012, 

2011-Ohio-6802. For the reasons stated in our opinion in Franklin, 

Defendant’s first assignment of error is overruled. 

SECOND ASSIGNMENT OF ERROR

{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED 

APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY DENYING THE 

APPELLANT’S MOTION TO BE REPRESENTED BY RETAINED COUNSEL OF HIS 

CHOICE.” 

{¶ 9} Defendant argues that the trial court abused its 

discretion when it denied his requests to substitute his 

newly-retained counsel for his court appointed counsel, and for 

a continuance of the trial made necessary by the requested 

substitution. 

“Abuse of discretion” has been defined as an attitude 

that is unreasonable, arbitrary or unconscionable. 

Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 

87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to 

be expected that most instances of abuse of discretion 

will result in decisions that are simply unreasonable, 

rather than decisions that are unconscionable or 

arbitrary. 

A decision is unreasonable if there is no sound reasoning 

process that would support that decision. It is not 
5

enough that the reviewing court, were it deciding the 

issue de novo, would not have found that reasoning 

process to be persuasive, perhaps in view of 

countervailing reasoning processes that would support 

a contrary result. 

AAAA Enterprises, Inc. v. River Place Community Redevelopment,

50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). 

{¶ 10} The decision whether to grant or deny a request for a 

continuance is a matter left to the sound discretion of the trial 

court. A reviewing court will not disturb that decision absent 

an abuse of discretion. State v. Powell, 49 Ohio St.3d 255, 552 

N.E.2d 191 (1990); Ungar v. Serafite, 376 U.S. 575, 589, 84 S.Ct. 

841, 11 L.Ed.2d 921 (1964). 

{¶ 11} In State v. Rash, 111 Ohio App.3d 351, 354, 676 N.E.2d 

167, (2nd Dist. 1996), this court observed: 

In Ungar, the United States Supreme Court wrote: 

The matter of continuance is traditionally within the 

discretion of the trial judge, and it is not every denial 

of a request for more time that violates due process 

even if the party fails to offer evidence or is compelled 

to defend without counsel. Contrariwise, a myopic 

insistence upon expeditiousness in the face of a 

justifiable request for delay can render the right to 
6

defend with counsel an empty formality. There are no 

mechanical tests for deciding when a denial of a 

continuance is so arbitrary as to violate due process. 

The answer must be found in the circumstances present 

in every case, particularly in the reasons presented 

to the trial judge at the time the request is made. 

(Emphasis added and citations omitted.) Ungar at 589, 

84 S.Ct. at 849-850, 11 L.Ed.2d at 931. 

The Ohio Supreme Court has adopted and followed a 

balancing test from Unger that requires a “reviewing 

court to weigh potential prejudice against ‘a court's 

right to control its own docket and the public's interest 

in the prompt and efficient dispatch of justice.’” 

Powell, 49 Ohio St.3d at 259, 552 N.E.2d at 196, citing 

Unger, 67 Ohio St.2d at 67, 21 O.O.3d at 43, 423 N.E.2d 

at 1080. In Powell, the Supreme Court listed relevant 

factors to be considered: (1) length of delay sought, 

(2) previous continuances sought or granted, (3) 

inconvenience to all involved, (4) legitimacy of reason 

for delay, and (5) whether the defendant had caused the 

delay. Id.

{¶ 12} The decision whether or not to remove court appointed 

counsel and allow substitution of new counsel is also addressed 
7

to the sound discretion of the trial court, and its decision will 

not be reversed on appeal absent an abuse of discretion. State 

v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765, 2001-Ohio-112; State 

v. Coleman, 2nd Dist. Montgomery No. 19862, 2004-Ohio-1305. 

{¶ 13} Defendant wanted a continuance of the trial so that his 

 newly-retained counsel, William Daley, could be substituted for 

his court-appointed attorney, J. Allen Wilmes. In evaluating a 

request for substitute counsel, the court must balance the 

accused’s right to counsel of his choice against the public’s 

interest in the prompt and efficient administration of justice. 

Murphy. 

{¶ 14} Attorney Daley first entered his appearance as 

co-counsel on February 23, 2010. Then, on February 26, 2010, the 

Friday before trial was scheduled to commence on Monday, March 

1, 2010, Daley filed a motion seeking to relieve court appointed 

counsel, J. Allen Wilmes, substitute himself as counsel for 

Defendant, and continue the trial to allow Daley time to prepare. 

 Daley’s motion indicated that the reason Defendant requested 

substitution of counsel and a continuance of the trial was due 

to a complete lack of communication between Defendant and court 

appointed counsel prior to trial; that they had not yet even 

discussed the case. The trial court denied Defendant’s request 

for substitution of counsel and a continuance of the trial, finding 
8

that it was ill-timed and a delaying tactic. 

{¶ 15} Defendant’s “eleventh hour” request for substitution 

of counsel and a continuance of the trial was filed the Friday 

afternoon before trial was scheduled to begin on Monday, March 

1, 2010. The trial had previously been continued three times, 

once at Defendant’s request. Defendant knew at least six weeks 

earlier that he intended to retain William Daley to represent him, 

and Daley knew he would have to request a continuance because of 

a conflict with another case scheduled before a different judge. 

{¶ 16} Despite the fact that both Defendant and Attorney Daley 

were in court on February 18, 2010 on a motion to suppress, nothing 

was said at that time about needing a continuance. Furthermore, 

in his February 23, 2010 notice of appearance as co-counsel, 

Attorney Daley made no request for a continuance. That request 

was not made until the afternoon of the last business day before 

the trial was to begin. By then, potential jurors had been ordered 

to appear in court at 9:00 a.m. on Monday morning, March 1, 2010, 

and over forty witnesses had been subpoenaed by the State for the 

trial. 

{¶ 17} The trial court found that the lack of communication 

between Defendant and his court-appointed counsel was due to 

Defendant’s unwillingness to cooperate. Attorney Wilmes had sent 

several letters and made repeated efforts to contact Defendant, 
9

which were unsuccessful. When a meeting was finally scheduled, 

Defendant failed to appear. When Defendant called Attorney Wilmes 

on the Friday before the trial began in order to discuss the case, 

Wilmes was out of town at a seminar and unavailable. The trial 

court concluded that Defendant caused the lack of communication 

problem by failing to cooperate with his court appointed counsel. 

 On these facts and circumstances, we find no abuse of discretion 

in denying Defendant’s eleventh hour request for a substitution 

of counsel and a continuance of the trial. 

{¶ 18} Defendant’s second assignment of error is overruled. 

THIRD ASSIGNMENT OF ERROR

{¶ 19} “THE TRIAL COURT DEMONSTRATED BIAS IN FAVOR OF THE STATE 

AND AGAINST APPELLANT.” 

{¶ 20} Defendant argues that the trial court demonstrated 

judicial bias against him and in favor of the State. 

{¶ 21} In Weiner v. Kwait, 2nd Dist. Montgomery No. 19289, 

2003-Ohio-3409, we stated: 

Judicial bias is “a hostile feeling or spirit of 

ill will or undue friendship or favoritism toward one 

of the litigants or his attorney, with the formation 

of a fixed anticipatory judgment on the part of the judge, 

as contradistinguished from an open state of mind which 

will be governed by the law and the facts.” State v. 
10

LaMar, 95 Ohio St.3d 181, 189, 2002-Ohio-2128 (citations 

omitted). 

Trial judges are “presumed not to be biased or 

prejudiced, and the party alleging bias or prejudice 

must set forth evidence to overcome the presumption of 

integrity.” Eller v. Wendy's Internatl., Inc., (2000), 

142 Ohio App.3d 321, 340, 755 N.E.2d 906 (citations 

omitted). In Eller, the court also noted that “[t]he 

existence of prejudice or bias against a party is a matter 

that is particularly within the knowledge and reflection 

of each individual judge and is difficult to question 

unless the judge specifically verbalizes personal bias 

or prejudice toward a party.” Id.

{¶ 22} Defendant first argues that the trial court demonstrated 

bias and prejudice against him when it refused to allow his retained 

counsel, William Daley, to participate in the hearing held on 

March 1, 2010 to determine whether Daley would be substituted as 

counsel for Defendant and allowed to represent Defendant at trial. 

 Defendant’s claim is based upon Daley’s affidavit, which was 

attached to Defendant’s pro se renewal motion for substitution 

of counsel. Daley stated that the trial judge told him he could 

not participate in the hearing. Daley attributes the judge’s 

decision to a history of “these same type of issues” between Daley 
11

and the judge, which Daley “believes to be a factor in the court’s 

determination not to allow Defendant to retain private counsel 

of Defendant’s choice.” Affidavit at ¶ 12, 20. 

{¶ 23} The judge explained on the record the conversation he 

had with Attorney Daley, and the judge specifically denied telling 

Daley that he could not attend or participate in the hearing. 

The judge told Daley he would not be Defendant’s counsel at that 

hearing. The judge left the matter of Daley’s presence at the 

hearing up to Daley. 

{¶ 24} It appears that there was some confusion or 

misunderstanding about whether Daley would appear for the hearing 

or instead be informed of the outcome. The hearing was scheduled 

for 9:00 a.m. Daley appeared at 10:00 a.m. The trial judge saw 

Daley but was occupied with other matters at that time. When the 

judge finished his other business, he inquired where Daley was, 

but was told Daley had left. Therefore, the court did not have 

an opportunity to talk with Daley or put him on the record about 

the substitution of counsel issue. 

{¶ 25} While the judge may have expressed some frustration over 

Daley’s absence, the record does not support Defendant’s contention 

that the court prevented Daley from attending the hearing or that 

the judge based his decision denying Defendant’s request for 

substitution of counsel and a continuance of the trial on Daley’s 
12

decision not to attend the hearing. No hostility or ill will 

against Defendant on the part of the trial court is demonstrated. 

{¶ 26} Defendant additionally argues that the trial court 

demonstrated bias in favor of the State by questioning a State’s 

witness in a manner that intimated to the jury the court’s opinion 

of the evidence the witness offered or the witness’ credibility. 

{¶ 27} A trial judge is allowed to interrogate a witness in 

an impartial manner, provided the court’s questioning does not 

indicate to the jury its opinion on the evidence or the credibility 

of the witness. State ex rel. Wise v. Chand (1970), 21 Ohio St.2d 

113; Evid.R. 614(B). 

{¶ 28} In Jenkins v. Clark, 7 Ohio App.3d 93, 97, 454 N.E.2d 

541 (2nd Dist. 1982), this court stated: 

In regard to the examination of witnesses, the trial 

judge is something more than a mere umpire or sergeant 

at arms to preserve order in the courtroom. He has active 

duties to perform in maintaining justice and in seeing 

that the truth is developed and may for such purpose 

put proper questions to the witnesses, and even leading 

questions. Gilhooley v. Columbus Ry. Power & L. Co.

(1918), 20 Ohio N.P. (N.S.) 545. If at any time during 

the trial of a cause a judge is prompted, in the interest 

of justice, to develop facts germane to an issue of fact 
13

to be determined by the jury, it is proper that he do 

so. Dependabilt Homes, Inc. v. Haettel (1947), 81 Ohio 

App. 422. 

* * * 

In the absence of any showing of bias, prejudice, or 

prodding of a witness to elicit partisan testimony, it 

will be presumed that the court acted with impartiality 

in attempting to ascertain a material fact or to develop 

the truth. Gilhooley, supra.

Jenkins, supra, at 98. 

{¶ 29} State’s witness, Gary R. Shaffer, a forensic chemist 

from the Miami Valley Regional Crime Lab, testified regarding his 

testing of various drugs. Shaffer expressed uncertainty during 

his testimony whether “within a reasonable scientific certainty,” 

a legal term, was the same or less than “absolute certainty.” 

That prompted the trial court to question Shaffer about the 

reliability and accuracy of his testing as follows: 

{¶ 30} “THE COURT: Believe it or not the Court has a question, 

clarification if I might. 

{¶ 31} “Earlier, sir, you testified that you weren’t sure – 

you had testified that you use some legal terms and you weren’t 

sure what they meant. So I want to just clarify some part of your 

testimony here. 
14

{¶ 32} “You – the testimony that you’ve given regarding the 

testing of the cocaine, is it based on your reliable scientific 

information? 

{¶ 33} “THE WITNESS: Yes, sir. 

{¶ 34} “THE COURT: Is the procedure that you use, are the 

procedures and testing that you use are those based on objectively 

verifiable and widely accepted facts or principles? 

{¶ 35} “THE WITNESS: Yes, sir. 

{¶ 36} “THE COURT: Is the design of the procedure and the test, 

is it reliably, does it reliably implement the three upon which 

it’s based? 

{¶ 37} “THE WITNESS: Yes, sir. 

{¶ 38} “THE COURT: And in this case – particular procedure test 

that you did here, was that conducted in a way that yields an 

accurate result? 

{¶ 39} “THE WITNESS: Yes, sir. 

{¶ 40} “THE COURT: And are you reasonably certain of the result 

that you got? 

{¶ 41} “THE WITNESS: Yes, sir, I am. 

{¶ 42} “THE COURT: Okay. Thank you. 

{¶ 43} “Does that prompt any questions? 

{¶ 44} “MS. PARSON: No, thank you, Your Honor. 
15

{¶ 45} “THE COURT: Okay. Mr. O’Brien?1

{¶ 46} “MR. O’BRIEN: No questions. 

{¶ 47} “THE COURT: Okay. Thank you very much.” (Trial T. at 

727-728.) 

{¶ 48} The court questioned Shaffer briefly in order to 

ascertain whether his tests were based on reliable scientific 

information, if the procedure he used was based on objectively 

verifiable and widely accepted scientific principles, if the test 

yielded accurate results, and whether Shaffer was reasonably 

certain of the results. See Evid.R. 703. The court’s questions, 

while leading, were nevertheless impartial and not aimed at 

eliciting partisan testimony, but were merely intended to elicit 

the facts needed to decide the issue. The trial court did not 

demonstrate bias or prejudice for or against either party. 

{¶ 49} Defendant’s third assignment of error is overruled. 

FOURTH ASSIGNMENT OF ERROR

{¶ 50} “THE JOINDER OF CO-DEFENDANT ANTHONY FRANKLIN 

SUBSTANTIALLY PREJUDICED APPELLANT’S DUE PROCESS RIGHT TO A FAIR 

TRIAL UNDER THE UNITED STATES CONSTITUTION.” 

{¶ 51} Defendant argues that the trial court abused its 

discretion and denied him due process and a fair trial by denying 

 1

Counsel for co-defendant Franklin. 
16

his request for a trial separate from that of his co-defendant, 

Anthony Franklin. 

{¶ 52} In State v. Humphrey, 2nd Dist., Clark App. No. 02CA0025, 

2003-Ohio-2825, we stated: 

Crim.R. 8(B) governs joinder of defendants and 

provides: 

“Two or more defendants may be charged in the same 

indictment, information or complaint if they are alleged 

to have participated in the same act or transaction or 

in the same series of acts or transactions constituting 

an offense or offenses, or in the same course of criminal 

conduct. Such defendants may be charged in one or more 

counts together or separately, and all of the defendants 

need not be charged in each count.” 

Crim.R. 14 provides for relief from prejudicial 

joinder and states in relevant part: 

 “If it appears that a defendant or the state is 

prejudiced by a joinder of offenses or of defendants 

in an indictment, information, or complaint, or by such 

joinder for trial together of indictments, informations 

or complaints, the court shall order an election or 

separate trial of counts, grant a severance of 

defendants, or provide such other relief as justice 
17

requires. In ruling on a motion by a defendant for 

severance, the court shall order the prosecuting 

attorney to deliver to the court for inspection pursuant 

to Rule 16(B)(1)(a) any statements or confessions made 

by the defendants which the state intends to introduce 

in evidence at the trial.” 

The decision whether to grant a motion for separate 

trials is a matter resting within the trial court's sound 

discretion, and a reviewing court will not disturb that 

decision on appeal absent a showing that the trial court 

abused its discretion. State v. Torres (1981), 66 Ohio 

St.2d 340, 421 N.E.2d 1288. 

{¶ 53} Defendant and his co-defendant, Anthony Franklin, were 

jointly indicted for possessing heroin, possessing criminal tools, 

and engaging in a pattern of corrupt activity based upon multiple 

acts of possessing and selling crack cocaine and heroin. The 

predicate acts/offenses occurred on eight separate occasions 

between May 13, 2006 and April 2, 2009. Both Defendant and Franklin 

were present during many of these incidents. Joinder was proper 

because these defendants participated together in the predicate 

acts, and the crimes and these defendants were connected by the 

same acts, the same evidence, and the same witnesses. Had 

Defendant and Franklin been tried separately, the juries would 
18

hear much of the same evidence. 

{¶ 54} Defendant argues that he was prejudiced by the joinder 

because of the admission of a statement of Franklin’s that 

incriminated Defendant, resulting in a Bruton error. Bruton v. 

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). 

 A Bruton problem arises in a joint trial of two or more defendants 

when evidence of a confession or statement by a non-testifying 

defendant is admitted that implicates the other defendant(s) in 

criminal activity. Id.; Humphrey. Here, the State did not 

present at the trial any statements made by Franklin that implicated 

Defendant in criminal activity. Therefore, no Bruton problem 

arises. 

{¶ 55} Furthermore, the evidence presented at trial as to the 

predicate offenses was not so complex that the jury was incapable 

of segregating the proof as to each defendant. It is clear from 

the evidence which of the two defendants participated in which 

predicate act. The evidence relating to Defendant Griffin was 

clear and direct, and established that Defendant was involved 

in the incidents/offenses that occurred on October 16, 2008, 

January 22, 2009, March 17, 2009, and April 1, 2009. The trial 

court instructed the jury separately on each of these incidents 

and instructed the jury to consider each defendant separate from 

the other. Defendant and Franklin were properly tried together, 
19

and Defendant has failed to demonstrate that he suffered prejudice 

as a result of the joinder. 

{¶ 56} Defendant’s fourth assignment of error is overruled. 

FIFTH ASSIGNMENT OF ERROR

{¶ 57} “THE TRIAL COURT SHOULD HAVE ORDERED A MISTRIAL BASED 

UPON PROSECUTORIAL MISCONDUCT.” 

{¶ 58} Defendant argues that he was denied a fair trial as a 

result of prosecutorial misconduct which included repeatedly 

showing the jury a cardboard poster that labeled Defendant and 

his co-defendant, Anthony Franklin, as part of a “drug trafficking 

group.” We addressed this same argument in the appeal of 

Defendant’s co-defendant, Anthony Franklin, and found that it 

lacked merit because no prosecutorial misconduct was demonstrated 

to the extent that the poster was used not as evidence but rather 

for demonstrative purposes only, to help the jury keep track of 

the incidents, and the jury was instructed accordingly. State 

v. Franklin, 2nd Dist. Montgomery Nos. 24011, 24012, 

2011-Ohio-6802. For the reasons stated in our opinion in Franklin, 

Defendant’s fifth assignment of error is overruled. 

SIXTH ASSIGNMENT OF ERROR

{¶ 59} “THE REMOVAL OF AFRICAN-AMERICAN JURORS BY PEREMPTORY 

CHALLENGES VIOLATED APPELLANT’S DUE PROCESS AND EQUAL PROTECTION 

RIGHTS, RESULTING IN THE DENIAL OF A FAIR TRIAL.” 
20

{¶ 60} Defendant argues that the trial court committed 

reversible error when it allowed the State to use peremptory 

challenges to dismiss two African-American jurors during voir dire 

based upon racial discrimination. We addressed this same 

argument in the appeal of Defendant’s co-defendant, Anthony 

Franklin, and concluded that it lacked merit because the State 

provided race neutral explanations for its dismissal of both 

jurors. State v. Franklin, 2nd Dist. Montgomery 24011 and 24012, 

2011-Ohio-6802. For the reasons stated in our opinion in Franklin, 

Defendant’s sixth assignment of error is overruled. The judgment 

of the trial court will be affirmed. 

FAIN, J., concurs. 

FROELICH, J., concurring: 

{¶ 61} “A trial judge ‘need take no vow of silence. He is there 

to see that justice is done or at least to see that the jury have 

a fair chance to do justice.’ He or she ‘ought to be always the 

guiding spirit and the controlling mind at a trial.’” (Citations 

omitted.) Commonwealth v. Dias, 373 Mass. 412, 416, 367 N.E.2d 

623 (1977). Further, a trial court’s interrogation of a witness 

is not deemed partial for purposes of Evid.R. 614(B) merely because 

the evidence elicited during the questioning is potentially 

damaging to the defendant. State v. Blankenship, 102 Ohio App.3d 
21

534, 548, 657 N.E.2d 559 (12th Dist.1995). 

{¶ 62} At the same time, a judge must keep in mind that the 

State has the duty and burden to prove a defendant’s guilt and 

should not intentionally fill in gaps in the prosecution’s or 

defendant’s case. A judge in our adversary system is not an active 

participant in the gathering or prosecution of evidence. See, 

e.g., Reamey, Innovation or Renovation in Criminal Procedure: Is 

the World Moving Toward a New Model of Adjudication?, 27 Ariz. 

J. Int’l & Comp. L. 693, fn. 18 (2010). 

{¶ 63} I concur with the majority that, with the record before 

us, the judge did not demonstrate bias or abandon his neutral role. 

 . . . . . . . . . . 

Copies mailed to: 

Kirsten A. Brandt, Esq. 

Kent J. Depoorter, Esq. 

Hon. Steven K. Dankof