[Cite as State v. Bond, 2020-Ohio-398.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsKHAIRI A. BOND 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Patricia A. Delaney, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 2019 CA 0033 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County 

Court of Common Pleas, Case No. 

2018CR0366 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: February 6, 2020 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GARY BISHOP CHARES KOENIG 

Prosecuting Attorney Koenig & Owens, LLC 

BY: JOSEPH SNYDER 5354 North High Street 

Assistant Prosecuting Attorney Columbus, OH 43214 

38 South Park Street 

Mansfield, OH 44902 
Richland County, Case No. 2019 CA 0033 2 

Gwin, P.J. 

{¶1} Defendant-appellant Khairi A. Bond [“Bond”] appeals his conviction and 

sentence after a jury trial in the Richland County Court of Common Pleas. 

Facts and Procedural History 

{¶2} The underlying case arose as a result of the shooting death of Nolan Lovett 

on May 3, 20181

. 

{¶3} On June 25, 2018, an indictment was filed charging Bond in a two-count 

indictment. Count One charged Bond with Murder, an unclassified felony under R.C. 

2903.02(A). Count Two charged Bond with Murder, an unclassified felony under R.C. 

2903.02(B). Both Counts included a firearm specification under R.C. 2941.145. 

{¶4} Bond's case proceeded to trial on March 18, 2019 and ending on March 25, 

2019. On March 20, 2019, there was an incident outside of the courtroom during a recess. 

1T. at 2652. As a result, the Trial Court restricted courtroom access to immediate family 

members. 1T. at 266-267. At the close of trial, Bond was found guilty of the felonious 

assault murder of Nolan Lovett, in violation of R.C. 2903.02(B), an unclassified felony, 

and of a firearm specification, in violation of RC, 2941.145. Bond was acquitted of felony 

murder. Bond was sentenced to 15 years to life on the murder conviction and 3 years on 

the firearm conviction, to be served consecutively. 

Assignments of Error 

{¶5} Bond raises four Assignments of Error, 

 1 A detailed statement of the underlying facts is not necessary to our disposition of this appeal. 

2 For clarity, references to the transcript from Bond’s jury trial will be cited by, as “__T.__,” 

signifying the volume number and the page number. 
Richland County, Case No. 2019 CA 0033 3 

{¶6} “I. THE TRIAL COURT DEPRIVED APPELLANT OF HIS 

CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL IN VIOLATION OF THE SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT CLOSED HIS 

TRIAL TO THE PUBLIC. 

{¶7} “II. THE VERDICT OF THE JURY FINDING THE DEFENDANT GUILTY OF 

FELONY MURDER IN VIOLATION OF R.C. 2903.02(B) WAS CONTRARY TO THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶8} “III. THE TRIAL COURT IMPROPERLY ALLOWED IRRELEVANT AND 

OTHER ACTS EVIDENCE, AND PERMITTED THE STATE TO ENGAGE IN 

PROSECUTORIAL MISCONDUCT, BY ADMITTING A "GANGSTA" RAP SONG, IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS. 

{¶9} “IV. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS 

TO DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, 

ARTICLE I OF THE OHIO CONSTITUTION, AS A CONSEQUENCE OF INEFFECTIVE 

ASSISTANCE OF COUNSEL.” 

I. 

{¶10} In Bond’s First Assignment of Error, Bond contends the trial court committed 

reversible error when it closed the trial to the public. We agree. 
Richland County, Case No. 2019 CA 0033 4 

STANDARD OF APPELLATE REVIEW. 

{¶11} The Sixth Amendment to the United States Constitution, as applied to the 

states through the Fourteenth Amendment guarantees that “[i]n all criminal prosecutions, 

the accused shall enjoy the right to a speedy and public trial.” Section 10, Article I, Ohio 

Constitution also guarantees an accused the right to a public trial. 

{¶12} Because of the constitutional significance of an accused’s right to a public 

trial, “[t]he violation of the right to a public trial is considered structural error and not 

subject to harmless-error standard.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio5084, 854 N.E.2d 1038, ¶ 50, citing Waller v. Georgia, 467 U.S. 39, 49–50, 104 S.Ct. 

2210, 81 L.Ed.2d 31 (1984), fn. 9. “ ‘A structural error is a “defect affecting the framework 

within which the trial proceeds, rather than simply an error in the trial process itself.” ’ ” 

Sowell, ¶ 33, quoting Drummond, ¶ 50, quoting Arizona v. Fulminante, 499 U.S. 279, 

310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Because the denial of a defendant’s right 

to a public trial under Article I, Section 10 of the Ohio Constitution is considered structural 

error, it “cannot be waived by the defendant’s silence.” State v. Bethel, 110 Ohio St.3d 

416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. Consequently, Bond did not waive his right 

to a public trial in this case by a failure to object at trial. Id. See also Sowell, ¶ 36 

ISSUE FOR APPEAL. 

A. Whether the trial court’s order limiting a portion of the public from observing 

Bond’s jury trial introduced error of constitutional dimension. 

{¶13} The right to a public trial is not absolute, and in some instances must yield 

to other interests, such as those essential to the administration of justice. A trial judge 

has authority to exercise control over the proceedings and the discretion to impose control 
Richland County, Case No. 2019 CA 0033 5 

over the proceedings. Nonetheless, the abridgement of a defendant’s right to a public 

trial may occur only when necessary, and any closure must be narrowly drawn and 

applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc. 

v. Unger, 28 Ohio St.3d 418, 421, 504 N.E.2d 37(1986); State v. Lane, 60 Ohio St.2d 

112, 121, 397 N.E.2d 1338(1979). 

{¶14} In Waller v. Georgia, the Supreme Court established the test for determining 

whether a courtroom closure violates a criminal defendant’s Sixth Amendment right to a 

public trial: 

The presumption of openness may be overcome only by an 

overriding interest based on findings that closure is essential to preserve 

higher values and is narrowly tailored to serve that interest. The interest is 

to be articulated along with findings specific enough that a reviewing court 

can determine whether the closure order was properly entered. 

467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), (quoting Press–Enter. Co. v. 

Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 

(1984)). In the same opinion, the Supreme Court articulated the test as a four-factor 

analysis: 

[ (1) ] the party seeking to close a public hearing must advance an 

overriding interest that is likely to be prejudiced, [ (2) ] the closure must be 

no broader than necessary to protect that interest, [ (3) ] the trial court must 

consider reasonable alternatives to closing the proceeding, and [ (4) ] it 

must make findings adequate to support the closure. 

Waller, at 48, 104 S.Ct. 2210, 81 L.Ed.2d 31. Courts frequently call this the “Waller test.” 
Richland County, Case No. 2019 CA 0033 6 

{¶15} The Supreme Court of Ohio in Drummond subsequently modified the Waller

test in cases where the trial closure is partial rather than total. In Drummond, the court 

concluded “[w]hen a trial judge orders a partial, as opposed to a total, closure of a court 

proceeding, a ‘substantial reason’ rather than Waller’s ‘overriding interest’ will justify the 

closure.” 111 Ohio St.3d 14, 53, 2006-Ohio-5084, 854 N.E.2d 1038. 

{¶16} Waller dealt with a suppression hearing during which all persons other than 

witnesses, court personnel, the parties, and their lawyers were excluded for the entire 

duration. 467 U.S. 39, 42, 104 S.Ct. 2210, 81 L.Ed.2d 31. 

{¶17} In the case at bar, the closure was arguably partial. The trial court did not 

exclude Bond’s immediate family members or the victim’s immediate family. 1T. at 265-

266. There is no evidence that the trial court either permitted or prevented the press from 

entering the courtroom. 

1). Whether there was a substantial reason for partially closing the 

courtroom—one that is likely to be prejudiced if no closure occurs. 

{¶18} With regard to the first Waller factor, because we consider the closure in 

this case to be partial, the trial judge needed a “substantial reason” to close the trial to 

the public. The trial judge articulated the following reason on the record: 

THE COURT: The jury is not in the courtroom. They're back in the 

jury room. 

We had an incident in the lobby, apparently, during the break. The 

jurors were not aware of that. I don't know they weren't aware of it, but they 

were all in the jury room. This happened out in the lobby. An argument. 

Apparently, the M&M machine is broken out there. But for that reason, we 
Richland County, Case No. 2019 CA 0033 7 

have cut back on the number of people that are allowed in the courtroom. 

We will only allow immediate family members. So that's one of the results. 

I wanted to get that on the record. 

Is there anything the parties want to put on the record about it? Do 

we need to ask the jury if they heard anything? They were all in the jury 

room. This happened out in the lobby on a break. 

From the State. 

MS. BOYER: Your Honor, Olivia Boyer from the State. During the

incident, a juror came out of the room. I didn't say anything to her. But she 

went back into the jury room while the incident was occurring. 

THE COURT: The defense? 

MR. BRADLEY: No. I don't think we should ask them, because if 

they didn't know it – 

THE COURT: If we ask them, we'll highlight it. I think that's probably 

smart. Again, we checked immediately to make sure they were all back in 

the jury room. 

MS. SCHUMACHER: My only thought is, Mr. Caudill found himself 

in the midst of that. I don't know if that will make the paper. I know we've 

instructed the jurors not to pay attention to the paper. I don't know if it's 

worth -- if it gets printed, Your Honor, my concern is that they will read it. Is 

there concern from the jurors one way or the other? 

THE COURT: I will continue to address that they are not to read the 

newspaper or pay attention to the media. Whatever the reporter wants to 
Richland County, Case No. 2019 CA 0033 8 

report, it's his right. He can report whatever he wants to. But the good news 

is no one got hurt, apparently, and the jurors were not out in the lobby. All 

of them were back in the jury room. 

MS. SCHUMACHER: Thank you, Judge. 

THE COURT: So there are some good things. Again, we have 

limited the numbers. Nothing like that helps the situation, helps either side. 

Everyone needs to be on their best behavior or we won't have anybody 

watching. 

MS. SCHUMACHER: One more thing, Judge. The new victim’s 

rights, there's a constitutional amendment. I believe the Court has 

permitted immediate family and father and mother -- 

THE COURT: Immediate family members we have let back in. I don't 

think necessarily anybody in the immediate family was involved. It was an 

extended situation. 

MS. SCHUMACHER: Thank you, Judge. 

THE COURT: We'll bring the jurors back in and get started. 

1T. at 264-267. 

{¶19} In Drummond, the trial judge explained the reason that he decided 

to close the courtroom, 

The Court: It’s come to the attention of the Court that some of the 

jurors—or witnesses feel threatened by some of the spectators in the court. 

The Court’s making a decision that until we get through the next couple of 

witnesses I’m going to clear the courtroom. That includes the victim’s 
Richland County, Case No. 2019 CA 0033 9 

family, the defendant’s family and all other spectators. The Court had two 

incidents yesterday involving one of the spectators where he showed total 

disrespect to the Court in chambers and gave the deputies a very hard time. 

I didn’t hold him in contempt of court, but just after that then another 

individual—there was a physical altercation between that individual who 

also came to watch the trial. His name’s Damian Williams... 

* * * 

The Court: Who ultimately got charged with assault on a peace 

officer. So over the objection of the defendant I’m clearing the courtroom 

just for today only. 

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶¶32-34. 

{¶20} With respect to the first Waller factor, the Ohio Supreme Court in Drummond 

court concluded, 

The trial court’s closure order on February 4, 2004, satisfied the 

Waller criteria. First, the trial court’s interest in maintaining courtroom 

security and protecting witness safety supported the trial court’s limited 

closure of the courtroom. There had been a physical altercation between a 

spectator and courtroom deputies, and a second incident occurred in the 

judge’s chambers. The trial court also stated that “the fear of retaliation 

expressed by various witnesses” was a basis for its action. In this regard, 

we acknowledge the dangerous nature of gang violence and the genuine 

need to protect witnesses testifying against gang members from the deadly 

threat of retaliation. 
Richland County, Case No. 2019 CA 0033 10 

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶54 (citations omitted). 

{¶21} In the case at bar, there is nothing in the record to suggest that any further 

altercations took place either in the courtroom or in the hallway. The trial judge 

characterized the incident as “an argument.” No further description was given other than 

a broken candy machine. We are not able to discern from the record who was involved 

in the incident, the number of individuals involved in the incident, the individual, or 

individual’s relationships to the parties or the witnesses, or the nature of the 

disagreement. The record does not show that any potential witness was in fear of 

retaliation or in need of protection. The trial court made no such finding on the record. 

See, Drummond, ¶32; ¶54; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142, 

2011-Ohio-817, ¶22. 

2). Whether the closure was no broader than necessary to protect the 

interest in partially closing the courtroom. 

{¶22} With respect to the second Waller factor, the Drummond court concluded 

that the closure of the courtroom during the testimony of three state witnesses was not 

broader than necessary. Drummond at ¶ 55. The Court also noted the fact that the media 

remained in the courtroom “helped safeguard Drummond’s right to a public trial” because 

the witnesses’ awareness of the media minimized the risk that they would alter their 

testimony.” 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶55. 

{¶23} In the case at bar, the closure was not limited in scope or duration, but 

continued for the remainder of the trial. Excluding members of the general public who 

had nothing to do with the incident was overly broad. Nothing in the record suggests that 

the press was permitted into the courtroom for the remainder of the trial. 
Richland County, Case No. 2019 CA 0033 11 

3). Whether the trial court considered reasonable alternatives to closing the 

proceeding. 

{¶24} With respect to the third Waller factor, the Drummond court noted, “the 

record does not show that the trial court considered alternatives to closure. However, the 

partial closure of the courtroom only during the cross-examination of Rozenblad and the 

testimony of Morris and Thomas is narrower than full closure for the entire trial. See 

Brown, 142 F.3d at 538.” 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶57. 

{¶25} In the case at bar, if the trial court believed that the incident on the third day 

of trial necessitated stronger measures to preserve courtroom safety and security, the 

record does not disclose that the trial judge considered alternatives to closing the trial to 

the public. For instance, the record does not show that the trial court considered 

additional security measures such as posting deputies in the hallway or in the courtroom, 

or excluding only those individuals who took part in the incident. See, State v. Long, 10th 

Dist. No. 16AP-708, 2017-Ohio-9322, ¶24. 

{¶26} Both Drummond and Waller required the trial court to consider other 

available options before closing the remainder of the trial. It does not appear from the 

record before this Court that the trial court did so in the case at bar. 

4). Whether the trial court made findings adequate to support the closure. 

{¶27} Considering the final Waller factor the Drummond court noted, 

[T]he trial court stated that there had been a physical altercation 

between spectators and courtroom deputies. The trial court also mentioned 

that another incident had occurred in the judge’s chambers and that 

witnesses had expressed fear of retaliation by testifying in open court. The 
Richland County, Case No. 2019 CA 0033 12 

trial court also identified Damian Williams and Michael Peace as involved in 

the earlier disturbances. Although the trial court should have made 

additional findings to clarify the reasons for closing the court, the strength 

of the judge’s actual findings must be evaluated in reference to the limited 

scope of the closure. By that standard, we conclude that the trial court’s 

findings were adequate. 

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶58. 

{¶28} In the case at bar, with regard to the final Waller factor, as noted above, the 

trial court noted an “argument” and a broken candy machine. The trial court made no 

other findings in support of its decision, and the record does not disclose any other 

incidents or circumstances that would have necessitated the closing of the trial to the 

general public. If there were other relevant incidents or circumstances justifying closure 

that are not evident from the record, the trial court made no such findings. We cannot 

agree with the trial court’s conclusion that an argument in the hallway during a recess 

affected the integrity of the proceedings in such a way that closing the trial to the general 

public became necessary. Otherwise, a trial court could close the courtroom to the public 

for nearly every minor disturbance. State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 

94142, 2011-Ohio-817, ¶22. 

{¶29} The failure to make any findings on the record to adequately support closure 

does not satisfy the fourth prong of the Waller test. State v. Long, 10th Dist. No. 16AP708, 2017-Ohio-9322, ¶33; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142, 

2011-Ohio-817, ¶26. 
Richland County, Case No. 2019 CA 0033 13 

{¶30} We find the trial court’s failure to satisfy the Waller test and lack of a 

substantial reason to close the trial to the public as set forth in Drummond, violated Bond’s 

Sixth Amendment right to a public trial. State v. Long, 10th Dist. Franklin No. 16AP-708, 

2017-Ohio-9322, ¶33. Regrettably, we are constrained to reverse this case. As stated 

above, the violation of the right to a public trial is structural error that affects the framework 

within which the trial proceeds, rather than simply an error in the trial process itself. 

{¶31} Accordingly, the First Assignment of Error is sustained, and we reverse 

Bond’s convictions and remand this case for a new trial. 

II., III., IV. 

{¶32} In the remaining assignments of error, Bond alleges various errors at trial. 

However, based on our disposition of the first assignment of error, we overrule these 

assignments of error as moot. See App.R. 12(A)(1)(c). 

{¶33} Accordingly, judgment of the Richland County Court of Common Pleas is 

reversed and the case is remanded for a new trial. 

By Gwin, P.J., 

Delaney, J., and 

Baldwin, J., concur