[Cite as State v. Stephenson, 2013-Ohio-771.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ADAMS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 12CA936 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

ELMER E. STEPHENSON, : ENTRY

 : 

 Defendant-Appellant. : Released: 02/26/13 

_____________________________________________________________ 

APPEARANCES:

Timothy Young, Ohio State Public Defender, and Valerie Kunze, Assistant 

State Public Defender, Columbus, Ohio, for Appellant. 

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Assistant 

Adams County Prosecutor, West Union, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, P.J. 

{¶1} Appellant, Elmer Stephenson, appeals the judgment of the 

Adams County Court of Common Pleas. Appellant was convicted of gross 

sexual imposition, in violation of R.C. 2907.05(A)(1), a fourth degree 

felony. Appellant contends the trial court erred by: (1) deviating from the 

language of the Howard charge when it gave the instruction to the 

deadlocked jury; and, (2) by providing a definition of “knowingly” that did 

not comport with Ohio law. Upon review, we find no plain error occurred 

when the trial court modified the language of the Howard charge it gave to 
Adams App. No. 12CA936 2

the jury and further, no plain error occurred by the trial court’s inclusion of 

the definition of “knowingly” in the jury instructions. As such, we overrule 

both assignments of error and affirm the judgment of the trial court. 

FACTS 

{¶2} On July 7, 2011, Appellant Elmer Stephenson was indicted by 

the Adams County Grand Jury on two counts of gross sexual imposition and 

one count of kidnapping, based on allegations made by Chasity Morrison. At 

the time of the alleged incident, Appellant was 68 years old and used 

oxygen. Ms. Morrison was his home health care aide, age 26. She assisted 

Appellant by cleaning and running errands. 

{¶3} The indictment stemmed from an incident Ms. Morrison reported 

to the West Union Police. Morrison alleged in early 2011, while she was 

doing dishes at the kitchen sink in Appellant’s home, he came up behind her 

and put his hands inside her clothes. The State of Ohio presented three 

witnesses: Sgt. Don Adams of the Adams County Sheriff’s Department, 

Kenneth Dick, an investigator with the Adams County Prosecutor’s Office, 

and Ms. Morrison. Ms. Morrison testified that when he put his hands inside 

her clothes, he touched her “right beside her vagina,” and also “underneath 

her bra line.” She further testified she “tried to leave” but was successful 

only when Appellant “just stopped.” Appellant declined to testify at trial. 
Adams App. No. 12CA936 3

{¶4} The jury began deliberating at 3:00 p.m. on the second day of 

trial. At 3:40 p.m., the jury inquired: “Why are there two sexual imposition 

charges? And then it’s got one for the charge of sexual contact of the pubic 

region? One for the charge of sexual contact of the breast region? 

Clarification please.” All parties agreed to the court’s written response, 

which was “Yes.” At 5:51 p.m., the jury inquired “What happens if all 12 

jurors cannot come to agreement on all three counts?” The court brought the 

jury back to the courtroom and engaged in dialogue with them about their 

inability to reach a unanimous decision and possible recess for the day. The 

jury returned to deliberations. 

{¶5} At 8:00 p.m., the jury submitted a note indicating that they were 

unable to reach a unanimous verdict and believed “as a whole that a 

unanimous decision will not be made at any time.” The court then issued a 

Howard charge and released the jury. The jury returned the next day at 

10:00 a.m. and the court gave them a second Howard charge with additional 

instructions. At 2:30 p.m., the jury returned a verdict of guilty on count one, 

gross sexual imposition, and not guilty on the remaining counts. This appeal 

followed. 

 ASSIGNMENTS OF ERROR 

I. “THE TRIAL COURT ERRED IN ITS DEVIATION FROM THE 

HOWARD CHARGE WHEN IT GAVE INSTRUCTION TO THE 
Adams App. No. 12CA936 4

DEADLOCKED JURY AND THEREBY DEPRIVED MR. 

STEPHENSON OF HIS RIGHT TO A FAIR TRIAL BEFORE A 

PROPERLY INSTRUCTED JURY, AND OF HIS RIGHT TO DUE 

PROCESS OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, 

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND BY SECTIONS 10 AND 16 OF THE OHIO 

CONSTITUTION.” 

II. “THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE 

JURY BY INEXPLICABLY PROVIDING THE DEFINITION OF 

KNOWINGLY, AND THEREBY DEPRIVED MR. STEPHENSON 

OF HIS RIGHT TO A FAIR TRIAL BEFORE A PROBPERLY 

INSTRUCTED JURY, AND OF HIS RIGHT TO DUE PROCESS 

OF LAW, AS GUARANTEED BY THE FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF 

THE OHIO CONSTITUTION.” 

LEGAL ANALYSIS 

 The Howard Charge

{¶6} In his first assignment of error, Appellant contends that the trial 

court erred in its deviation from the Howard charge when it failed to use, 

verbatim, the language approved in State v. Howard, 42 Ohio St. 3d 18, 537 

N.E.2d 188 (1989). In support of his argument, Appellant cites State v.

Andricks, 111 Ohio App.3d 93, 675 N.E.2d 872 (3rd. Dist. 1996). In 

Andricks, the appellate court held that the cumulative effect of errors in the 

giving of an altered Howard instruction could not help but confuse and 

mislead the jury. Thus, the discrepancies in language rose to the level of 

plain error. The appellate court further held that there would seem to be no 
Adams App. No. 12CA936 5

good reason for the trial court to deviate from the verbatim syllabus 

language provided in Howard. 

{¶7} Here, similar to the circumstances in Andricks, the transcript 

reveals that Appellant did not object to the court’s altered Howard

instruction when it was given at the end of the second day of trial, although 

he was twice given the opportunity on that date to do so. The transcript also 

reveals that Appellant did not object to the giving of the altered Howard 

charge when he was given yet a third opportunity to do so on the morning of 

the third day of trial. The failure to object to a jury instruction waives any 

claim of error relative to that instruction, unless, but for the error, the 

outcome of the trial clearly would have been otherwise. State v. Barrett, 4th 

Dist. No. 03CA2889, 2004-Ohio-2064, 2004 WL 878002, ¶21. See, e.g., 

State v. Nolling, 98 Ohio St.3d 44, 781 N.E.2d 88 (2002). 

{¶8} Notice of plain error under Crim.R.52 (B) is to be taken with the 

utmost of caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice. Barrett, ¶21. See, e.g. State v. Barnes, 94 

Ohio St. 3d 21, 27 759 N.E.2d 1240 (2002); State v. Hill, 92 Ohio St.3d 191, 

196, 749 N.E. 2d 274 (2001). Plain error should not be invoked unless it can 

be said that, but for the error, the outcome of the trial would clearly have 

been otherwise. See, e.g., State v. Jackson, 92 Ohio St.3d 436, 438, 751 
Adams App. No. 12CA936 6

N.E.2d 946 (2001); State v. Sanders, 92 Ohio St.3d 245, 750 N.E.2d 90 

(2001). However, unlike the appellate court in Andricks, we do not believe 

that the circumstances in the case at bar merit a finding of plain error. 

{¶9} In State v. Howard, the Supreme Court of Ohio approved the 

following supplemental instruction for those cases in which a jury indicates 

to the trial judge that they are unable to reach a unanimous verdict and are 

considered to be deadlocked: 

“The principal mode, provided by our Constitution and laws, for 

deciding questions of fact in criminal cases, is by jury verdict. In a 

large proportion of cases, absolute certainty cannot be attained or 

expected. Although the verdict must reflect the verdict of each 

individual juror and not mere acquiescence in the conclusion of your 

fellows, each questions submitted to you should be examined with 

proper regard and deference to the opinions of others. You should 

consider it desirable that the case be decided. You are selected in the 

same manner, and from the same source, as any future jury would be. 

There is no reason to believe the case will ever be submitted to a jury 

more capable, impartial, or intelligent than this one. Likewise, there 

is no reason to believe that more or clearer evidence will be produced 

by either side. It is your duty to decide the case, if you can 

conscientiously do so. You should listen to one another’s arguments 

with a disposition to be persuaded. Do not hesitate to reexamine your 

views and change your position if you are convinced it is erroneous. 

If there is disagreement, all * * *jurors should reexamine their 

positions, given that a unanimous verdict has not been reached. Jurors 

for acquittal should consider whether their doubt is reasonable, 

considering that it is not shared by others, equally honest, who have 

heard the same evidence, with the same desire to arrive at the truth, 

and under the same oath. Likewise, jurors for conviction should ask 

themselves whether they might not reasonably doubt the correctness 

of a judgment not concurred in by all other jurors.” 
Adams App. No. 12CA936 7

{¶10} We have readily acknowledged that the better practice is to give 

the precise Howard instruction as approved by the Supreme Court of Ohio. 

Barrett, ¶29. See, e.g., State v. Lopez, 90 Ohio App.3d 566, 582, 630 

N.E.2d 32 (1993). See, e.g., State v. Clifton, 172 Ohio App.3d 286, 2007-

Ohio-3392, 872 N.E.2d 1310, ¶31. However, as aptly noted by the Eighth 

District Court of Appeals, the Howard charge is not an absolute mandate for 

trial courts to follow, but rather a suggestion. Id. See, e.g., State v. Williams, 

8th Dist. No. 66864, 1995 WL 396369 (Jul.5, 1995). If a court deviates 

from the Howard language, the court must ensure that the charge satisfies 

the concerns of the Howard opinion. Barrett, ¶29. In particular, a court must 

ensure that the instruction (1) encourages a unanimous verdict only when 

one can conscientiously be reached, leaving open the possibility of a hung 

jury and resulting mistrial, and (2) calls for all jurors to reevaluate their 

opinions, not just the minority members. Id; also see State v. Matyas, 7th 

Dist. No. 98-JE-14, 2000-Ohio-267, 2001 WL 1808575 (Dec. 6, 2000). 

{¶11} Appellant takes issue with the modified language of the 

Howard charge at several places in the transcript. We will compare the 

passages with which Appellant takes issue,1

 keeping in mind the two 

principle concerns of the Howard opinion. 

 

1

 To clearly illustrate the differences between the verbatim Howard language and the altered Howard 

charge given to the jury in these proceedings, the variations in word choice have been italicized. 
Adams App. No. 12CA936 8

(1) The precise Howard charge begins: 

The principal mode, provided by our Constitution and laws, for 

deciding questions of fact in criminal cases, is by jury verdict. 

By contrast, the trial court here stated: 

Now, returning to that which we commenced with this trial 

before you were actually sworn in. Those who participate in a trial 

must do so in accordance with established rules. That is true of the 

witnesses, the lawyers, and the Judge. Ladies and gentlemen of the 

jury, this is not particularly unusual your concern with inability to 

reach a unanimous verdict. But, there is precedence as to how a 

court and or counsel must address these instances, and that is the next 

aspect of this. 

{¶12} While we agree the trial court exchanged the standard 

introductory sentence for a generalized statement about duties and 

established rules, we do not necessarily agree that the difference in language 

could only be interpreted by the jury as meaning that a jury verdict was 

being required of them. Individual jurors may well have interpreted the 

court’s language about “established rules” as hearkening back to previous 

admonitions they had been given throughout the proceedings. For example, 

during the trial, the judge had reminded the jurors that they were not to 

discuss the case with family or friends, not to express opinions, not to read 

the local newspaper, not to consider opening statements as evidence, and not 

to expect they would be allowed to keep their cell phones during 

deliberations. We conclude that this aspect of the altered Howard charge did 
Adams App. No. 12CA936 9

not cause confusion such that it foreclosed the possibility of a hung jury or 

place undue pressure on minority members of the jury. 

2) On the deliberative process and interaction among jurors, the 

Howard charge reads: 

In a large proportion of cases, absolute certainty cannot be 

attained or expected. Although the verdict must reflect the verdict of 

each individual juror and not mere acquiescence in the conclusion of 

your fellows, each question submitted to you should be examined with 

proper regard and deference to the opinions of others. You should 

consider it desirable that the case be decided. You are selected in the 

same manner and from the same source, as any future jury would be. 

There is no reason to believe the case will ever be submitted to a jury 

more capable, impartial, or intelligent than this one. Likewise, there 

is no reason to believe that more or clearer evidence will be produced 

by either side. It is your duty to decide the case, if you can 

conscientiously do so. You should listen to one another’s arguments 

with a disposition to be persuaded. Do not hesitate to reexamine your 

views and change your position if you are convinced it is erroneous. 

If there is disagreement, all jurors should reexamine their positions, 

given that a unanimous verdict has not been reached. 

By contrast, the trial court here stated: 

In a large proportion of cases, absolute certainty cannot be 

attained or expected. Although the verdict must reflect the verdict of 

each individual juror and not mere consent to the conclusion of other 

jurors, each question submitted to you should be examined with 

proper regard and deference to the opinions of other jurors. You 

should consider it desirable that the case be decided. You were 

selected in the same manner and from the same source as any future 

jury would be. There is no reason for this Court to believe that the 

case will ever be submitted to a jury more capable, impartial, or 

intelligent than this one. Likewise, there is no reason to believe that 

more or clear evidence will be produced by either side. It is your duty 

to decide this case if you can honestly do so. You should listen to one 

another’s arguments with a disposition to be persuaded. Do not 
Adams App. No. 12CA936 10

hesitate to reexamine your views and change your position if you are 

convinced that it is wrong. As there is disagreement, all jurors should 

reexamine their positions, given that a verdict has not been reached. 

{¶13} Appellant argues that the word and phrasal choices utilized by 

the trial court in place of verbatim Howard language issued a stronger 

directive implying that the jury “must reach a verdict.” We disagree. We 

do not find that the words and phrases substituted by the trial judge varied 

significantly from the verbatim Howard language. 2

 We also do not find that 

the substituted word choices or omission of the word “unanimous” in the 

phrase “given that a verdict has not been reached,” created a coercive effect 

on the jury. After review, we conclude that the language utilized by the trial 

judge complied with Howard. 

3) Regarding specific instructions addressed to jurors for acquittal 

and jurors for conviction, the Howard charge states: 

Jurors for acquittal should consider whether their doubt is 

reasonable, considering that it is not shared by others, equally honest, 

who have heard the same evidence, with the same desire to arrive at 

the truth, and under the same oath. Likewise, jurors for conviction

 

2

 For example, the trial court substituted “consent,” “other jurors,” “honestly,” and “wrong” for the words 

“acquiescence, “ “your fellows,” “conscientiously,” and “erroneous.” According to Merriam Webster’s 

Online Dictionary, http://www.meriam-webster.com/dictionary (accessed August 28, 2012), “consent” is a 

synonym for “acquiescence.” “Honest” is a synonym for “conscientious,” and “wrong” is a synonym for 

“erroneous.” Also, according to the online source, “fellow” is defined as “a member of a group having 

common characteristics, “i.e. “other jurors.” 
Adams App. No. 12CA936 11

should ask themselves whether they might not reasonably doubt the 

correctness of a judgment not concurred in by all other jurors. 

By contrast, the trial court here substituted language as follows: 

Jurors more in favor of plaintiff should consider whether their 

position is correct, considering that it is not shared by others equally 

honest who have heard the same evidence with the same desire to 

arrive at the truth and under the same oath. Likewise, jurors more in 

favor of defendant should ask themselves whether their position is 

correct considering that it is not shared by other jurors. 

{¶14} Appellant argues that the altered language shifted the jury’s 

discussion from determining whether he was guilty beyond a reasonable 

doubt to a discussion of which “side” was correct- plaintiff or defendant. 

Although it is preferable to have left the language as to “reasonable doubt” 

in the charge, we disagree that the trial court’s substitution in wording went 

as far as to shift or eradicate the burden on the State to provide evidence 

beyond a reasonable doubt on each element of each charge. The trial court 

properly instructed the jury prior to their retiring for deliberations. 

Specifically, the court instructed that Appellant was presumed innocent until 

his guilt was established beyond a reasonable doubt. The trial court 

instructed that the State must produce evidence beyond a reasonable doubt 
Adams App. No. 12CA936 12

as to every essential element of the offenses charged. The trial judge further 

instructed that reasonable doubt is not mere possible doubt. The substance of 

the section of which Appellant complains, despite changing the language to 

“more in favor of plaintiff” and “more in favor of defendant,” continues to 

focus on the fact that all jurors, those for acquittal and those for conviction, 

should reconsider their positions. Again, the trial court’s changes in 

language did not place undue pressure or coercion on the minority jurors but 

asked all jurors to reconsider their positions. 

{¶15} Finally, Appellant argues that the trial court, after issuing the 

Howard charge a second time, added a further instruction over defense’s 

objection, as follows: 

“Your initial conduct upon re-entering the jury room is a matter of 

importance. It is not wise to immediately express a determination to 

insist upon a certain verdict because if your sense of pride is aroused 

you may hesitate to change your position even if you later decide that 

you are wrong. Consult with one another, consider each other’s views 

and deliberate with the objective of reaching an agreement if you can 

do so without disturbing your individual judgment. Do not hesitate to 

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

not surrender honest opinions in order to be congenial or to reach a 

verdict solely because of the opinion of your fellow jurors.” 

{¶16} The essence of counsel’s objection was: (1) that the jury had 

not requested further instruction and actually had the written instructions 

with them to refer to if necessary; (2) that the instruction was not 

appropriate; and, (3) that some of the language was similar to that in the 
Adams App. No. 12CA936 13

Howard charge and could be viewed as an attempt to persuade them to a 

verdict one way or another. We are not persuaded that giving this standard 

Ohio instruction a second time, OJI 207.33, regarding initial conduct upon 

entering the jury room, was error or coerced a verdict. Albeit, repetitive, this 

instruction encourages jurors to consult with each other and consider each 

other’s views. Moreover, this instruction advised jurors not to surrender 

their honest convictions in order to “get along” with the other jurors or reach 

a verdict “solely” because of their opinions. 

{¶17} In summary, we do not find that the trial court’s modified 

Howard charge or the further charge, OJI 207.33, complained of by 

Appellant, “coerced” a unanimous verdict or created a coercive environment 

for the minority jurors. We believe that although the Howard instruction 

given here was not verbatim, it was adequate. OJI 207.33 was perhaps 

superfluous, but not erroneous. Having found the trial court did not commit 

plain error, we overrule Appellant’s first assignment of error and affirm the 

judgment of the trial court. 

 The Trial Court’s Inclusion of the Definition of “Knowingly”

{¶18} Appellant was convicted of R.C. 2905.05(A)(1), gross sexual 

imposition, which reads as follows: 

 (A) No personal shall have sexual contact with another, not the spouse of 

the offender; cause another, not the spouse of the offender, to have sexual 
Adams App. No. 12CA936 14

contact with the offender; or cause two or more other persons to have sexual 

contact when any of the following applies: 

(1) The offender purposely compels the other person, or one of the other 

persons, to submit by force or threat of force. 

{¶19} Appellant also contends that the trial court committed plain 

error by improperly instructing the jury on the definition of “knowingly.” 

Appellant asserts this was inherently confusing because there was no clear 

reason presented to the jury for the definition being provided. The trial court 

gave the following instructions: 

The term purpose. A person acts purposely when it is his or her specific 

intention to cause a certain result or when the gist of the offense is a 

prohibition against conduct of a certain nature regardless of what the 

offender intends to accomplish thereby it is his specific intention to engage 

in conduct of that nature. 

Knowingly, a person acts knowingly regardless of his or her purpose when 

he or she is aware that his or her conduct will probably cause a certain result, 

or he or she is aware that his conduct will probably be of a certain nature. A 

person has knowledge of circumstances when he is aware that such 

circumstances probably exist. Since you cannot look into the mind of 

another, knowledge is determined from all the facts and circumstances in 

evidence. 

 

{¶20} “A criminal defendant has the right to expect that the trial court 

will give complete jury instructions on all issues raised by the evidence.” 

State v. Maine, 4th Dist. No. 04CA46, 2005 Ohio-3742, ¶11 (internal 

citation omitted), citing State v. Willingford, 49 Ohio St.3d 247, 251, 551 

N.E.2d 1279 (1990). When we review a trial court’s jury instructions, we 
Adams App. No. 12CA936 15

may not judge “‘a single instruction to a jury* * *in artificial isolation,” but 

we must view it “‘in the context of the overall charge.” ‘State v. Madrigal,

87 Ohio St. 3d 378, 396, 721 N.E.2d 52 (quoting Cupp v. Naughten, 414 

U.S. 141, 94 S. Ct. 396, 400 (1973). Thus, we must consider the jury 

instructions “as a whole” and then determine whether the jury charge 

probably misled the jury in a manner materially affecting the complaining 

party’s substantial rights. See Becker v. Lake Cty. Mem. Hosp. West, 53 

Ohio St. 3d 202, 208, 560 N.E. 2d 165 (1990). 

{¶21} As the court explained in State v. Hardy, 28 Ohio St. 2d 89, 92, 

276 N.E.2d 247 (1971): “In determining the question of prejudicial error in 

instructions to the jury, the charge must be taken as a whole, and the portion 

that is claimed to be erroneous or incomplete must be considered in relation 

to, and as it affects and is affected by the other parts of the charge. If from 

the entire charge it appears that a correct statement of the law was given in 

such a manner that the jury could not have been misled, no prejudicial error 

results.” 

{¶22} We must not reverse a conviction due to error in the jury 

instructions unless the error is so prejudicial that it may induce an erroneous 

verdict. Maine ¶11. See Parma Heights v. Jaros, 69 Ohio App.3d 623, 630 

591 N.E.2d 726 (1990). 
Adams App. No. 12CA936 16

{¶23} The transcript reveals at the conclusion of trial, the trial court 

discussed modifications to the proposed jury instructions with the prosecutor 

and defense counsel. Defense counsel declined to voice any objection 

whatsoever to the inclusion of “knowingly” in the jury instructions. Thus, 

again, we review the trial court’s jury instructions under the plain error 

standard. 

 {¶24} The elements of the crime of which Appellant was convicted 

do not include the term “knowingly.” “Knowingly” was defined for the 

jury, pursuant to OJI 417.11and R.C. 2901.22(B). While inclusion of the 

definition of “knowingly” may have been perceived odd or inexplicable to 

the jury, we remain mindful that reviewing courts must consider jury 

instructions in their entirety. State v. Delawder, 4th Dist. No. 10CA3344, 

2012-Ohio-1923, at¶30. We are not convinced that the jury’s question 

“Why are there two sexual imposition charges” is necessarily indicative of 

confusion relating to the definition of “knowingly.” 

{¶25} A similar argument was made in State v. DePompei, 8th Dist. 

No. 4638, 1984 WL 7191 (Feb.16, 1984), where Appellant was convicted on 

four counts of trafficking in drugs and twenty-seven counts of illegally 

processing drug prescriptions. One of the assigned errors on appeal was that 

the trial court instructed the jury on the definitions of “knowingly” and 
Adams App. No. 12CA936 17

“purposely” and the jury was misled into convicting Appellant for having 

the less culpable mental state (knowingly) than that which was required 

(intentionally). The appellate court disagreed, finding that the jury was 

clearly instructed that, before it could find Appellant guilty, it must find that 

the appellant “did intentionally make, utter or sell a false or forged 

prescription.” 

{¶26} The transcript shows that “purposely” was defined to the jury, 

using standard Ohio jury instructions. 3

 The other definitions provided to the 

jury, such as the “burden of proof,” “reasonable doubt,” “evidence,” and 

“credibility” were also standard Ohio instructions.4

 Specifically, as to the 

elements of the crimes charged, the jury was instructed: 

The defendant is charged in count one with gross sexual 

imposition. Before you can find the defendant, Elmer E. Stephenson, 

guilty of gross sexual imposition you must find beyond a reasonable 

doubt that on or about May 21st, 2011 in Adams County, Ohio, that 

Elmer E. Stephenson did have sexual contact with Chasity Morrison, 

not the spouse of the said Elmer E. Stephenson, or cause Chasity 

Morrison, not the spouse of the said Elmer E. Stephenson to have 

sexual contact with the same Elmer E. Stephenson. The said Elmer E. 

Stephenson having purposely (emphasis added) compelled Chasity 

Morrison to submit by force or threat of force. 

 

3

 “Purposely” was defined for the jury, pursuant to OJI R.C. 417.01 and R.C. 2901.22(A). 

4

 “Burden of proof” was defined for the jury pursuant to OJI 405.05 and R.C. 2901.05(A). “Reasonable 

doubt” was defined pursuant to OJI 405.07 and R.C. 2901.05(D). “Evidence” was defined pursuant to OJI 

409.01, for direct and circumstantial evidence. “Credibility” was defined pursuant to OJI 409.05 and R.C. 

2945.11. 
Adams App. No. 12CA936 18

{¶27} The jury was instructed by verbatim language as to count two 

of the indictment. Regarding count three, kidnapping, the trial court 

instructed: 

The defendant is charged in count three with kidnapping. 

Before you can find the defendant Elmer E. Stephenson, guilty of 

kidnapping in violation of 2905.01(A)(4) you must find beyond a 

reasonable doubt that on or about May 21st, 2011 in Adams County, 

Ohio that Elmer E. Stephenson did by force, threat, or deception 

remove Chasity Morrison from the place where the other person was 

found or restrain the liberty of Chasity Morrison with purpose

(emphasis added) to engage in sexual activity as defined in Section 

2907.01 of the Revised Code with the said Chasity Morrison against 

the victim’s will. 

{¶28} The jury’s confusion as to “why are there two sexual imposition 

charges” could just as well relate to the fact that the two charges stemmed 

from an incident which occurred on one date in early 2011. When reviewing 

the complete jury instructions, although inclusion of the definition of 

“knowingly” was unnecessary, it is clear that the trial court provided the jury 

with adequate instructions. “Ordinarily, reversible error does not consist of 

misstatements or ambiguities in only part of the instructions.” Delawder 

at¶30, citing State v. Pettit, 4th Dist. No. 99CA429, 2000 WL 897993, (July 

5, 2000), at ¶4. 

{¶29} In the context of review of the entire set of instructions given 

to the jury, we do not believe the jury was misled or that prejudice occurred. 

While Appellant argues the only evidence of sexual contact was from Ms. 
Adams App. No. 12CA936 19

Morrison and thus, he was not convicted by an “overwhelming” amount of 

evidence, we note that the jury was in the best position to assess Ms. 

Morrison’s credibility. Noling, ¶ 54. See State v. DeHass, 10 Ohio St. 2d 

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Also, the State 

provided two additional witnesses. We conclude no plain error occurred by 

provision of the instruction “knowingly.” As such, we affirm the judgment 

of the trial court and overrule Appellant’s second assignment of error. 

 JUDGMENT AFFIRMED. 
Adams App. No. 12CA936 20

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED. Costs herein are assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Adams 

County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it 

is temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of 

the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Exceptions. 

Harsha, J. & Abele, J.: Concur in Judgment and Opinion. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.