[Cite as State v. Stafford , 2020-Ohio-3993.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Crai g R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 18-COA-036 RAYMOND STAFFORD Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Case No. 17-CRI-178

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Au g ust 5, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

CHRISTOPHER TUNNELL MATTHEW J. MALONE Ashland Count y Prosecutor Law Offices of Matthew J. Malone, LLC 10 East Main Stree t VICTOR R. PEREZ Ashland, Ohio 44805 COLE F. OBERLI Assistant Prosecutin g Attorne y ’s 110 Cotta g e Stree t Ashland, Ohio 44805A shland Count y , Case No. 18-COA-036 2

Hoffman, P.J. {¶1} Defendant-appellant Raymond Stafford appeals his conviction and sentence entered by the Ashland County Court of Common Pleas, u pon this Court's granting of his App.R. 26(B) motion to reopen the appeal. Plain tiff-appellee is the state of

Ohio.

STATEMENT OF THE CASE 1 {¶2} On December 15, 2017, the Ashland County Grand Jury indicted Ap pellant on one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third degree. The Indictment arose out of a fatal two car accident on November 28, 2016, which resulted in the death of Ernie Whitese l. The November 28, 2016 accident occurred when Appellant, who was driving a Mini C ooper, tried to pass Whitesel's Dodge Avenger. Appellant appeared before the trial c ourt for arraignment on December 21, 2017, and entered a plea of not guilty to the Indi ctment. {¶3} The state filed a motion in limine, requesting the trial court prohibit Appellant from introducing any testimony and/or evidence regarding the pr esence of methamphetamine in Whitesel's system at the time of his death. Appellant filed a timely response, arguing the presence of illegal drugs in Whitesel's s ystem would support his theory Whitesel caused the accident. After conducting a hearin g, the trial court granted the state's motion in limine, prohibiting the presentation of a ny evidence Whitesel had methamphetamines in his system.

1 For a complete recitation of the underlying facts and prior pr ocedural history of this matter, see this Court’s opinion in Appellant’s direct appeal, State v. Stafford , 5 th Dist. Ashland App. No. 18-COA-036, 2019 -Ohio3628.A shland Count y , Case No. 18-COA-036 3

{¶4} The matter proceeded to trial on September 25, 2018. The state called eight witnesses, including the first responders, the medical examiner who conducted the autopsy of Whitesel, and three accident reconstructionists, who were recognized as experts by the court. After hearing all the evidence and delib erating, the jury found Appellant guilty as charged. The trial court sentenced Appellan t to a period of incarceration of 18 months with credit for time served; suspend ed Appellant's license for a period of five years; and ordered him to pay restitution to W hitesel's family in the amount of $13,300.25, as well as court costs. {¶5} Appellant appealed his conviction and sentence to this Court, r aising two assignments of error. Appellant ’s first assignment of error ch allenged the trial court’s failure to allow him to introduce evidence of the illegal drug levels found in the victim’s system at the time of the crash. In his second assignment of e rror, Appellant claimed trial

counsel was ineffective for failin g to object to testimony rega rding the ultimate issue of recklessness. This Court affirmed Appellant’s conviction and s entence. State v. Stafford , 5 th Dist. Ashland App. No. 18-COA-036, 2019-Ohio-3628. {¶6} On September 25, 2019, Appellant filed an Application for Reope ning pursuant to App. R. 26(B). Therein, Appellant asserted appella te counsel was ineffective on direct appeal for failing to raise three proposed assignment s of error: I. Trial counsel was ineffective in failing to object to erroneous, contradictor y, and prejudicial jury instructions; II. Trial counsel was ineffective for failing to request appropriate lesser included offenses; and III. Jury selection irregularities. {¶7} Relative to the third proposed assignment of error, Appellant f iled a motion for partial transcript at the state’s expense. Via Judgment En try filed November 26, 2019,A shland Count y , Case No. 18-COA-036 4

this Court granted Appellant’s motion and ordered the transcrip t of the voir dire only be prepared at the state’s expense. This Court also held in abeya nce a ruling on Appellant’s third proposed assignment of error. Via Judgment Entry filed D ecember 11, 2019, this Court granted Appellant’s motion to reopen with respect to Prop osed Assignment of Error 1, overruled the motion with respect to Proposed Assignment of Error 2, and reiterated our prior decision to hold in abeyance a ruling on Proposed Ass ignment of Error 3. We ordered the Ashland County Clerk of Courts to transmit the reco rd in this matter and briefing proceed in accordance with App. R. 18. {¶8} On December 18, 2019, the state filed a motion to correct the r ecord in the trial court, arguing the court reporter misplaced a period as w ell as the word “recklessly” when she prepared the trial transcript for the direct appeal. The state sought an order from the trial court to correct the alleged errors. On Decembe r 20, 2019, the court reporter filed an Errata Sheet with the trial court, offering the follow ing corrections after checking

her steno notes:

Page No. 416 Line No. 20 & 21 Change to: . . . caused the deat h of Ernest R. Whitesel recklessly. Operate means to cause or have caused movement. Reason for change: Recklessly should have been attached to pri or sentence as read to the Jury from the Jury Charge by the Judge. December 20, 2019 Errata Sheet.A shland Count y , Case No. 18-COA-036 5

{¶9} Via Judgment Entry filed January 2, 2020, the trial court grant ed Appellant an extension of time in which to file a response to the state’s motion to correct the record, but denied Appellant’s request for a hearing. The trial court noted:

The jury was provided the written copy of the jury instruction s from which the Court read the instructions of law at the time the ju ry was charged. The written copy of the jury instructions, preserved for the re cord with the exhibits, accurately reflects the instructions read and physica lly handed to the jury for the purpose of deliberating the case. The Court p ossesses a copy of those instructions, as printed for the jury and they ar e already a part of the record in this case. A hearing is not necessary. Janua ry 2, 2020 Judgment Entry.

{¶10} Subsequently, on January 21, 2020, the trial court issued a jud gment entry, granting the state’s motion to correct the record. The trial c ourt stated:

At issue here is mis-placed punctuation in the transcript of t he [c]ourt’s jury charge. As the [c]ourt noted in a previous entry , the jury in this case was provided with the written text of the jury charged for use in the jury room. The jury did not receive the stenographer’s interpretati on of the [c]ourt’s oral inflection used during the jury charge. Clearly , even with the record as presented prior to correction, the [c]ourt stated the word “recklessly” while charging the jury. It is not as if the [c]o urt failed to give aA shland Count y , Case No. 18-COA-036 6

portion of the charge. In this case, it is merely the stenogra pher’s interpretation of what was stated by the [c]ourt that is at iss ue, not the statement itself. One cannot assume, even considering the sten ographer’s error, that the jurors heard the charge as reflected by the ste nographer’s keying. January 21, 2020 Judgment Entry.

{¶11} The trial court continued:

The [c]ourt read the jury charge from the printed copy ultimat ely given to the jury, and which the jury possessed during delibera tions for referral. There is no dispute as to the content and punctuatio n of the text from which the [c]ourt read the instructions to the jury, and w hich the jury possessed for reference purposes while engaged in deliberations

. Id

.

{¶12} On December 20, 2019, the state filed a motion for reconsiderat ion of this Court’s decision to reopen Appellant’s appeal. This Court deni ed the motion for reconsideration on January 7, 2020. {¶13} Upon completion of the transcript of the voir dire, Appellant f iled a Supplemental Application to Reopen Pursuant to App. R. 26(B) on January 2, 2020. This Court granted reopening of Appellant’s third proposed assignmen t of error. {¶14} Appellant presents the following assignments of error in this r eopened appeal for our review:A shland Count y , Case No. 18-COA-036 7

I. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO ERRONEOUS, CONTRADICTORY, AND PREJUDICIAL JURY

INSTRUCTIONS.

III. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE PRESENT WHEN VOIR DIRE OF AN IMPANNELED [SIC] JUROR,

WHO HAD FAILED TO DISCLOSE A PERSONAL RELATIONSHIP WITH THE ALLEGED VICTIM, OCCURRED OUTSIDE OF APPELLANT’S

PRESENCE AND WITHOUT APPELLANT’S WRITTEN WAIVER

PURSUANT TO CRIM. R. 43.

I

{¶15} In his first assignment of error, Appellant raises a claim of i neffective assistance of counsel due to defense counsel’s failure to objec t to jury instructions, which he contends were erroneous, contradictory, and prejudicial. {¶16} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio adopted this standard in the case of State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel 's assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or he r essential duties to the client. If we find ineffective assistance of counsel, we must t hen determine whether or not the defense was actually prejudiced by counsel's ineffectivenes s such that the reliabilityA shland Count y , Case No. 18-COA-036 8

of the outcome of the trial is suspect. This requires a showing there is a reasonable probability that but for counsel's unprofessional error, the ou tcome of the trial would have

been different. Id. {¶17} Trial counsel is entitled to a strong presumption all decisions fall within the wide range of reasonable professional assistance. State v. Sallie , 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998). In addition, the United States Supreme C ourt and the Ohio Supreme Court have held a reviewing court “need not determine w hether counsel's performance was deficient before examining the prejudice suffer ed by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052. Even debatable trial tactics and strate gies do not constitute

ineffective assistance of counsel. State v. Clayton , 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). {¶18} Appellant submits trial counsel was ineffective for failing to object to following portion of the jury instructions as set forth in the trial transcript:

The Defendant, Raymond L. Stafford, is charged in Count 1 of t he Indictment, Aggravated Vehicular Homicide. Before you find the Defendant guilty, you must find that on or about November 28, 2016, in As hland County, Ohio the Defendant, while operating or participating in the operation of a motor vehicle, caused the death of Ernest R. Whitesel. Recklessly operate means to cause or have caused movement.

* *A shland Count y , Case No. 18-COA-036 9

A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregard s a substantial and unjustifiable risk that such circumstances are likely to exist. And risk is a significant possibility, as contrasted with a re mote possibility, that a certain result may occur or that a certain circumstance may exist. Recklessly includes conduct that is knowingly or purposely performed. Tr. Transcript at 416, 419.

{¶19} Appellant contends, “The instruction given advised jurors that they would need to find that Appellant, while operating a motor vehicle, c aused the death of Ernest R. Whitesel” and such “advisement lacked the required mens rea necessary to sustain a finding of guilt.” Brief of Appellant at 4. Appellant adds, b y defining “recklessly operate” as “to cause or have caused movement”, the trial court “advised the jury that it could convict so long as it believed that Appellant had operated a ve hicle that caused movement

and Ernest R. Whitesel died.” Id . Appellant concludes the trial court’s failure to instruct on the appropriate mens rea was “unquestionably prejudicial as is [sic] relieved the jury of its obligation to determine that the State proved each and e very element, including that

the conduct was reckless.” Id . at 5. We disagree. {¶20} The written jury instruction as read by the trial court and pro vided to the jury for use during deliberations provides:A shland Count y , Case No. 18-COA-036 10

The Defendant, Raymond L. Stafford, is charged in Count 1 of t he Indictment, Aggravated Vehicular Homicide. Before you find the Defendant guilty, you must find that on or about November 28, 2016, in As hland County, Ohio the Defendant, while operating or participating in the operation of a motor vehicle, caused the death of Ernest R. Whitesel reck lessly. Operate means to cause or have caused movement.

{¶21} This instruction parallels the language of the Ohio Jury Instru ction for aggravated vehicular homicide, OJI CR 503.06. The state’s motio n to correct the record sought to correct the trial transcript to conform to trial cour t’s oral and written instructions. The court reporter filed the Errata Sheet to reflect the same. The Errata Sheet changes the placement of a single punctuation mark, a period. When the court reporter changes the placement of the period, the jury instruction parallels the trial court’s written instruction as well as the Ohio Jury Instructions. {¶22} We further find the jury instructions, as a whole, were not “so deficient as to render the jury’s verdict unreliable,” as Appellant asserts. B rief of Appellant at 7. The trial court was not required to define the terms “purposeful” a nd “knowing” for the jury as such are not the culpable mental state for the offense of aggra vated vehicular homicide. {¶23} Based upon the foregoing, we find trial counsel was not ineffec tive for failing to object to the jury instructions. {¶24} Appellant’s first assignment of error is overruled.A shland Count y , Case No. 18-COA-036 11

III

{¶25} In his third assignment of error, Appellant contends his consti tutional right to be present at every stage of his proceedings was violated wh en the trial court conducted a voir dire of Juror No. 2, who was already impaneled , outside of his presence and without a waiver of his right to be present. {¶26} An accused has a fundamental right to be present at all stages of his criminal trial. Ohio Constitution, Article I, Section 10; Crim. R. 43(A). “An accused's absence, however, does not necessarily result in prejudicial or constitutional error.” State

v. Hamilton , 1st Dist. Hamilton Nos. C-160247 and C-160248, 2017-Ohio-8140 , ¶ 30. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that exte nt only.” Id ., citing, Snyder

v. Massachusetts , 291 U.S. 97, 107–108, 54 S.Ct. 330, 78 L.Ed. 674 (1937), overruled on other grounds ; Duncan v. Louisiana , 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and Malloy v. Hogan , 378 U.S. 1, 2, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), fn. 1. In order to be deemed nonprejudicial, an error of consti tutional stature, either state or federal, must be “harmless beyond a reasonable doubt.” State v. Williams , 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983), citing, Chapman v. California, supra, at 24, 87 S.Ct. at 828; State v. Abrams (1974), 39 Ohio St.2d 53, 313 N.E.2d 823, paragraph two of the syllabus. {¶27} We find Appellant's absence during the voir dire of Juror No. 2 did not result in prejudicial or constitutional error, primarily because Juror No. 2 was ultimately excused from the jury prior to the start of their deliberations.A shland Count y , Case No. 18-COA-036 12

{¶28} The voir dire of Juror No. 2 occurred after the jury was sworn in and impaneled. During the lunch recess, Juror No. 2 remembered he had met Whitesel 5 or 6 years prior to the trial, and so advised the trial court. Th e trial court conducted an in camera voir dire of Juror No. 2 with the prosecutor and defense counsel. Defense counsel did not object to Appellant’s absence and, in fact, advised the trial court Appellant’s presence was not necessary. {¶29} In answering the questions posed to him by the trial court, the prosecutor, and defense counsel, Juror No. 2 revealed he and Whitesel worke d at the same company, but in different departments. Juror No. 2 would see Whitesel a t company meetings and described the frequency of their contact as “very seldom.” Jur or No. 2 said he did not associate with Whitesel, did not really talk to him, and it had “been quite a few years”

since he last saw Whitesel. Juror No. 2 also disclosed Whitese l’s ex-girlfriend and/or her family lived down the road from him, but he did not talk to the m and he moved to the area following Whitesel’s death. Although Juror No. 2 knew some of Whitesel’s family members, he had not seen them since school. Juror No. 2 confirm ed the limited contact he had with Whitesel would not impair his ability to keep an op en mind. {¶30} The trial court did not excuse Juror No. 2 and the trial procee ded. Following the presentation of evidence, the trial court properly instruct ed the jury on the law applicable to the case as well as how to conduct deliberations and complete the verdict form. The trial court then advised it would be excusing two ju rors, one of the alternates and one of the seated jurors. The trial court explained, “we di d have a situation during the first day of trial where one of the jurors fell asleep for a to tal of approximately 42 minutes, and it was noticed by the court, counsel and other jurors, and which was also documentedA shland Count y , Case No. 18-COA-036 13

by the court reporter, and because of that, I don’t believe it’ s appropriate to keep that juror on the jury because it would be unfair to the parties.” Trial T ranscript at 424. Thereafter, the trial court excused Juror No. 2. Juror No. 2 did not parti cipate in deliberations. {¶31} We find Appellant’s interests were adequately represented by hi s attorney who was present and actively examined Juror No. 2

. Addressing a similar situation, the United States Court of Appeals for the Seventh Circuit in Henderson v. Lane (C.A.7, 1980), 613 F.2d 175, 179, rejected a defendant’s claim the fail ure to secure his attendance at a proceeding to reinstate an alternate juror was reversible error, finding his attorney's presence at the proceeding to be “[t]he most obvious barrier to prejudice in * * * [the] case.” See also, United States v. Brown, supra, 571 F.2d at 987 (defense counsel's active participation in an in-chamber conference regarding the dismissal of a juror negated any prejudicial impact that might have resulted from de fendant's absence during the discussion.) {¶32} We also find Appellant's attendance at the voir dire would have contributed little to his defense. The trial court, the prosecutor, and de fense counsel thoroughly

examined Juror No. 2 and elicited sufficient information from w hich the trial court could determine Juror No. 2 could be impartial. {¶33} Accordingly, we find Appellant's absence during the voir dire o f Juror No. 2 was not only nonprejudicial under constitutional standards, but was also harmless beyond

a reasonable doubt.A shland Count y , Case No. 18-COA-036 14

{¶34} Appellant’s third assignment of error is overruled. {¶35} The judgment of the Ashland Coun ty Court of Common Pleas is aff irmed.

By: Hoffman, P.J. Baldwin, J. and Wise, Earle, J. concur