[Cite as State v. Fowler, 2016-Ohio-5867.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   C.A. CASE NO. 2015-CA-95
                                                   :
 v.                                                :   T.C. NO. 15CR97
                                                   :
 LUCAS FOWLER                                      :   (Criminal appeal from
                                                   :    Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

             Rendered on the ___16th___ day of _____September_____, 2016.

                                              ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, Atty. Reg. No. 0082053, 140 E. Broadway Avenue, Tipp City,
Ohio 45371
      Attorney for Defendant-Appellant

                                             .............

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Lucas Fowler, filed

October 21, 2015. Fowler was found guilty after an October 6-8, 2015 jury trial on one

count of involuntary manslaughter, in violation of R.C. 2903.04(A), a felony of the first

degree, as well as one count of trafficking in heroin, in violation of R.C. 2925.03(A)(1), a
                                                                                          -2-


felony of the fifth degree. The record reflects that Fowler sold heroin to the victim herein,

B.J. Quickle, who subsequently died of acute heroin intoxication. Fowler was sentenced

to 10 years for the involuntary manslaughter offense and one year for the trafficking

offense, to be served concurrently.

       {¶ 2} Folwer was indicted on March 2, 2015. The record reflects that Fowler was

initially tried on September 15-16, 2015, and that the proceeding ended in a mistrial on

Fowler’s motion after the jury heard testimony that Fowler had previously served time in

prison. On September 25, 2015, Fowler filed a motion to change the venue of the second

trial due to “adverse and pervasive pre-trial publicity.” On October 2, 2015, the trial court

issued an entry that provides that Fowler’s “motion for a change of venue will be held in

abeyance pending jury selection on October 6, 2015.”

       {¶ 3} Fowler asserts four assignments of error herein. His first assigned error is

as follows:

              THE TRIAL COURT ERRED IN DEALING IMPROPERLY WITH

       POTENTIAL JUROR MISCONDUCT.

       {¶ 4} We initially note that at the start of the State’s voir dire, the following

exchange occurred:

              MR. WILSON: Thank you Your Honor. Can you follow the law? I

       mean, that’s going to be the crux of the questioning that you get. As the

       twelve of you sit here, I want to start with, can you follow the law as

       instructed by the Judge. If he tells you that you have to do something, you

       have to accept a certain definition and accept a certain rule, can you do

       that? [Emphasis added]. Can everybody agree to that as you sit here?
                                                                                         -3-


             (Jurors respond affirmatively.)

             MR. WILSON: I started with that question because that’s the first

      thing that I wanted you to hear from the State of Ohio because it’s incredibly

      important. Really it is the basis of your duty as a juror to follow the law as

      instructed by the Judge. If anybody is going to have a problem with that,

      then we need to know that on the front.

      ***

      {¶ 5} Fowler directs our attention to the following exchange that occurred after the

State rested and the defense indicated that it did not intend to present any evidence:

             THE COURT: * * * I did want to disclose something to counsel.

      When I came back from lunch, the court’s bailiff informed me that Juror # 6

      * * * had come to her over the lunch hour and he had indicated that this

      morning he was sitting in the jury room drinking a cup of coffee, and he

      heard one of the other jurors who apparently was behind him standing - -he

      recognized it as being a female and I believe there is only two women on

      our jury.

             He recognized it as a women’s [sic] voice, but he didn’t identify the

      person. But apparently he overheard her telling another juror, and I don’t

      know if that other juror was also a woman or a man, I’m not sure, that she

      had looked up a definition of involuntary manslaughter on the hearing [sic].

             And at that point the other person said something along the lines of,

      “Oh, what was it?” And apparently she just responded, “Oh, it’s a doozy.”

      I don’t know what that means, and that was the extent of it. He let the court’s
                                                                                  -4-


bailiff know that. I don’t think there was any other conversation.

       The Court is open to suggestions as to how we should handle it. I

think there are a couple options. One would be for the Court to take no

specific action but to emphasize when it’s reading its instructions that the

instructions the Court gives is the law of the case, and that he jurors are to

follow that law, no other law, whether that be a preconceived notion of what

they believe the law is or some other law that they may have seen. I could

do that. We could bring the two female jurors in and figure out which one

did look that definition up on the internet, and we could inquire.

       I am open to suggestions. I am leaning towards simply emphasizing

to the jurors when I give instructions that they are to follow the law as given

to them by this Court, and I would think that that would suffice, but I am

willing to consider other options.

       ***

       MR. WILSON: Your Honor, I believe that the option number one is

probably the best, that you just emphasize that all the law comes from the

Court and the Court’s instructions of law. That any preconceived notions

that they have about what the law may be have to be put aside and to take

all their instructions from you and that no research should be done on what

the law is because you’re going to give them the law.

       THE COURT: Just for the record, I typically when I admonish jurors,

I’m confident that I told them they had to render their verdict in this case

based only on what transpires in this courtroom. I’m confident on that. I
                                                                               -5-


immediately go on to explain that they shouldn’t do any independent

investigation such as getting on line, looking up definitions or looking for

reports. I’m pretty sure I did not say that specifically in this case. But I

think the general admonition that their verdict be based only on what

transpires in the courtroom was sufficient enough that the jurors should

have known not do to that.

       Do you have a suggestion, Miss Richards, how the Court should

handle this matter?

       MS. RICHARDS: Your Honor, I’m gonna admit to you that I’m just

overwhelmed at this point again because my concern is based on the

information that this trial court has disclosed is who else was in the jury

room besides the gentleman that - - he wasn’t looking. From the way the

Court disclosed the information, Juror #6 just heard a female voice behind

him.

       I’m not sure I understand how many other people were in the room

and heard that, and what I’m concerned about is how much other

information did this female juror look up on line. That’s my concern.

       And if she blurts out in that one instance, and this gentleman was

brave enough to come forward and disclose it to Mrs. Gibson, then what

would happen, I mean, if she had blurred [sic] other things out to other

people. Is there some way we can do just a small brief, distinct inquiry to

this - - these two female jurors to find out if one or the other has blurbed

[sic] out any other information or looked up any other information?
                                                                                            -6-


                THE COURT: Well, the Court is of the opinion that the alleged juror

         misconduct is limited to what the person told the Court’s bailiff. I am not

         willing to launch an investigation into things that are not before the Court.

         [Emphasis added].

                So upon consideration of all the facts and circumstances, the court

         is going to emphasize at the beginning of its instructions that the jury must

         accept the instruction as given to them by the Court.

                They must apply the law as it is given to them and that they may

         neither change the law nor apply their own idea of what they think the law

         should be, whether that stems from a preconceived notion or something

         they may have heard or read, so the Court is going to handle it that way.

                There is no evidence before the Court that any other alleged

         misconduct occurred. So we can bring the jurors in.

         {¶ 6} Fowler asserts that there “is no sign in the transcripts that the court took the

necessary steps to adequately investigate potential jury bias and misconduct.” We

agree.

         {¶ 7} As this Court has previously noted, any “independent inquiry by a juror about

the evidence or the law violates the juror’s duty to limit his considerations to the evidence,

arguments, and law presented in open court, and such activity is juror misconduct. * * * .”

State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-Ohio-4415, ¶ 76. This Court has

further noted as follows:

                When possible jury misconduct is brought to the attention of the trial

         judge, the court has a duty to investigate the matter. State v. Rudge (1998),
                                                                                       -7-


      89 Ohio App. 3d 429, 442, 624 N.E.2d 1069. Because the trial judge is in

      the best position to determine the nature and extent of alleged jury

      misconduct, the court's decision on the scope of the proceedings necessary

      to discover misconduct in each case is reviewed only for an abuse of

      discretion. United States v. Shackleford (1985), 777 F.2d 1141, 1145.

State v. Miller, 2d Dist. Montgomery No. 18011, 2000 WL 1369918, *4 (Sept. 22, 2000).

As this Court has previously determined:

             An abuse of discretion implies that the trial court's attitude was

      unreasonable, arbitrary, or unconscionable. (Citation omitted.) AAAA

      Enterprises, Inc. v. River Place Community Urban Redevelopment Corp.,

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

      Id. “A decision is unreasonable if there is no sound reasoning process that

      would support that decision.” Id.

State v. Rush, 2d Dist. Greene No. 2015-CA-54, 2016-Ohio-4895, ¶ 8.

      {¶ 8} “In reviewing circumstances suggesting juror misconduct, we must employ

a two-tier analysis: (1) determine whether there was juror misconduct and (2) if juror

misconduct is found, determine whether it materially affected the defendant's substantial

rights. See State v. Taylor (1991), 73 Ohio App. 3d 827, 833, 598 N.E.2d 818, 821.” State

v. Hopfer, 112 Ohio App. 3d 521, 543, 679 N.E.2d 321 (2d Dist. 1996).

      {¶ 9} As this Court noted in State v. Gunnell, 2d Dist. Clark No. 09-CA-0013, 2010-

Ohio-4415, ¶ 77-88 (footnotes omitted):
                                                                                     -8-


       “It is well-established that ‘the party complaining about juror

misconduct must establish prejudice.’ ” State v. King, Lucas App. No. L–

08–1126, 2010–Ohio–290, at ¶ 23, quoting State v. Adams, 103 Ohio St. 3d
508, 817 N.E.2d 29, 2004–Ohio–5845, ¶ 42. This requirement of prejudice

is reflected in Crim.R. 33(A)(2), which provides: “A new trial may be granted

on motion of the defendant for any of the following causes affecting

materially his substantial rights: (2) Misconduct of the jury, prosecuting

attorney, or the witnesses of the state[.]”

       “[D]ue process does not require a new trial every time a juror has

been placed in a potentially compromising situation. Were that the rule, few

trials would be constitutionally acceptable. The safeguards of juror

impartiality, such as voir dire and protective instructions from the trial court,

are not infallible; it is virtually impossible to shield jurors from every contact

or influence that might theoretically affect their vote. Due process means a

jury capable and willing to decide the case solely on the evidence before it,

and a trial court ever watchful to prevent prejudicial occurrences and to

determine the effect of such occurrences when they happen. Such

determinations may properly be made at a hearing like that ordered in

Remmer [.]” Smith v. Phillips (1982), 455 U.S. 209, 217, 102 S. Ct. 940, 71
L. Ed. 2d 78.

       In Remmer v. United States (1954), 347 U.S. 227, 74 S. Ct. 450, 98
L. Ed. 2d 654, a person told a juror during the trial that a favorable outcome

for the defendant could be potentially lucrative. The juror immediately
                                                                                   -9-


informed the trial court of this communication. The judge, prosecutor, and

FBI investigated the matter and determined that the comment was said in

jest and no further action was taken. The defendant was never informed of

the contact with the juror until after he was convicted. On appeal, the United

States Supreme Court vacated the conviction and explained the importance

of a hearing to determine whether the juror was impacted by the outside

communication:

       “In a criminal case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed presumptively prejudicial.

       “* * *

       “The trial court should not decide and take final action ex parte on

information such as was received in this case, but should determine the

circumstances, the impact thereof upon the juror, and whether or not it was

prejudicial, in a hearing with all interested parties permitted to participate.”

Id. at 229–30.

       The Ohio Supreme Court has relied on Remmer to require the trial

court to hold a hearing in cases involving outside communications with

jurors: “When a trial court learns of an improper outside communication with

a juror, it must hold a hearing to determine whether the communication

biased the juror.” State v. Phillips, 74 Ohio St. 3d 72, 88, 656 N.E.2d 643,

citing Smith v. Phillips (1982), 455 U.S. at 215–16, and Remmer. See also

State v. Stallings, 89 Ohio St. 3d 280, 296, 731 N.E.2d 159, 2000–Ohio–
                                                                                  -10-


164. Similarly, if juror misconduct in the form of an independent

investigation is discovered, the trial court is “required to inquire of that

particular juror to determine whether he or she remained impartial after the

independent investigation.” [State v.] Spencer, 118 Ohio App. 3d at 874,

694 N.E.2d 161. See also State v. Gordon, Stark App. No. 2005CA00031,

2005–Ohio–3638, at ¶ 54, quoting State v. Gray (July 27, 2000), Cuyahoga

App. No. 76170.

       The inquiry of whether the juror has been biased by the outside

information should not be left to counsel for the parties. Rather, the trial

court has the duty to protect the rights of the State and the defendant to a

fair and impartial jury. This duty is reflected in R.C. 2945.03, which provides

that: “The judge of the trial court shall control all proceedings during a

criminal trial, and shall limit the introduction of evidence and the argument

of counsel to relevant and material matters with a view to expeditious and

effective ascertainment of the truth regarding the matters in issue.”

Therefore, if an allegation arises of outside influence on the jury, the trial

court must lead the inquiry to determine whether prejudice has resulted from

the juror misconduct.

       The United States Court of Appeals for the First District summarized

the trial court's duties:

       “ ‘[When] a colorable claim of jury taint surfaces during jury

deliberations, the trial court has a duty to investigate the allegation

promptly.’ [U.S. v.] Bradshaw, 281 F.3d at 289 (footnote omitted); see also
                                                                                      -11-

United States v. Corbin, 590 F.2d 398, 400 (1st Cir.1979). The investigation

must ‘ascertain whether some taint-producing event actually occurred,’ and

then ‘assess the magnitude of the event and the extent of any resultant

prejudice.’ Bradshaw, 281 F.3d at 289. Even if both a taint-producing event

and a significant potential for prejudice are found through the investigation,

a mistrial is still a remedy of last resort. See id . The court must first consider

‘the extent to which prophylactic measures (such as the discharge of

particular jurors or the pronouncement of curative instructions) will suffice

to alleviate prejudice.’ Id. This painstaking investigatory process protects

the defendant's constitutional right to an unbiased jury, id. at 289–90, as

well as his [‘ “]valued right to have his trial completed by a particular

tribunal,[” ’] [U.S. v.] Jorn, 400 U.S. at 484, 91 S. Ct. 547, 27 L. Ed. 2d 543

(plurality opinion) (quoting Wade [v. Hunter], 336 U.S. at 689, 69 S. Ct. 834,

93 L. Ed. 974). The investigation is also critical in creating a sufficient record

to permit meaningful appellate review of the [trial] court's manifest necessity

determination.” United States v. Lara–Ramirez, (1st Cir.2008), 519 F.3d 76,

86.

       When conducting the inquiry into juror misconduct and any resulting

bias or prejudice, a trial court normally will need to question the juror. The

United States Supreme Court has cautioned trial courts against

automatically dismissing the juror's credibility:

       “Respondent correctly notes that determinations made in Remmer-

type hearings will frequently turn upon testimony of the juror in question, but
                                                                                        -12-


       errs in contending that such evidence is inherently suspect. As we said in

       Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950),

       ‘[o]ne may not know or altogether understand the imponderables which

       cause one to think what he thinks, but surely one who is trying as an honest

       man to live up to the sanctity of his oath is well qualified to say whether he

       has an unbiased mind in a certain matter.’ Id., at 171, 70 S.Ct., at 523. See

       also United States v. Reid, 12 How. 361, 366, 13 L. Ed. 1023 (1852).” Smith

       v. Phillips, 455 U.S. at 217 n. 7.

       {¶ 10} This Court’s summary of State v. Gunnell, 132 Ohio St. 3d 442, 2012–Ohio–

3236, 973 N.E.2d 243, in State v. Zaragoza, 2d Dist. Montgomery No. 26706, 2016-Ohio-

144, ¶ 46-47, is further instructive:

              In Gunnell, the Supreme Court considered whether a juror's outside

       research, i.e., a handwritten definition of the word “perverse” and an

       instruction on “involuntary manslaughter” that the juror had printed off the

       internet, constituted grounds for a mistrial. Id. at ¶ 9–10, 973 N.E.2d 243.

       After learning of the juror's possession of this information, the trial court

       conducted a brief hearing during which the court informed the parties of the

       issue that had developed regarding the juror's outside research and then

       proceeded to question the juror regarding her research, including what

       information she had found, why she had looked for it, and whether she had

       shared that information with any other jurors. Id . at ¶ 11, 973 N.E.2d 243.

       The trial court did not, however, question the juror to determine whether any

       prejudice or bias was created by the information or whether the juror could
                                                                                          -13-

       disregard it. Id. at ¶ 14, 32, 973 N.E.2d 243. Nevertheless, the trial court

       found that the juror was “irreparably tainted” and declared a mistrial. Id. at

       ¶ 34, 973 N.E.2d 243.

              The Supreme Court held that the trial court in Gunnell “did not

       soundly exercise [its] discretion” in declaring a mistrial because the trial

       court conducted a limited inquiry of the juror and failed to ascertain whether

       the materials viewed by the juror caused the juror to be biased or prejudiced

       against the defendant. Id. at ¶ 33–40, 973 N.E.2d 243.

       {¶ 11} In State v. Hubbard, 8th Dist. Cuyahoga No. 92033, 2009-Ohio-5817, ¶ 15-

18, the Eighth District considered appellant’s assertion that the trial court erred in denying

his motion for a mistrial based upon a juror’s independent investigation with binoculars,

to determine how far she could see, as follows:

              In support of his argument that Juror No. 9's misconduct was

       prejudicial, appellant relies on this court's opinion in State v. Spencer, [118
Ohio App. 3d 871, 694 N.E.2d 161(8th Dist. 1997)]. In that case, one juror

       notified the other 11 jurors that he had contacted a number of physicians

       over the weekend about prescribing methadone, an issue in the case. Id. at

       162. The trial court learned of this misconduct and held a hearing to

       determine the effect of the juror's statement on the deliberations. Id. The

       trial court failed to individually question the jurors about any influence this

       may have had upon them, and instead, issued a stern warning about using

       any outside information in its deliberations. Id.

              In Spencer, we reversed the trial court's denial of the defendant's
                                                                                    -14-

motion for a mistrial. Id. at 163. While we acknowledged that the trial court

appropriately attempted to remedy the misconduct by issuing curative

instructions and conducting a hearing, we found fault with the manner in

which the court performed this task. Id. at 162-163. We determined that

“[t]he trial court was required to inquire of that particular juror to determine

whether he or she remained impartial after the independent investigation.”

Id. at 163. Without doing so, we were unable to conclude that the curative

instructions overcame any prejudice and that the defendant in that case

received the benefit of 12 impartial jurors. Id.

       This case, however, is quite different from that presented in Spencer.

In this case, the trial court followed the parameters established in Spencer,

in determining the impact of the juror misconduct and attempting to cure

said actions. First, unlike the situation in Spencer, the trial court interviewed

Juror No. 9 outside the presence of the other jurors. The court inquired in

depth into the exact actions taken by the juror and whether she was

influenced by her actions. She responded that she had not. He then inquired

whether she would be able to set aside her findings and deliberate solely

on the evidence introduced at trial. Juror No. 9 repeatedly responded that

she was able to do so. Finding Juror No. 9 unpersuaded by the independent

investigation, the court then performed a voir dire of the remaining jurors in

the absence of Juror No. 9. Each of the 11 remaining jurors independently

affirmed that they would be able continue deliberations without “taking into

account the information that was brought in extraneously by juror number
                                                                                            -15-


      nine and continue deliberating this case to the best of [their] ability * * *.” * *

      *

             Given the record and representations made by each of the jurors, we

      conclude that the trial court did not abuse its discretion in denying a motion

      for mistrial on this ground. The record fails to demonstrate any influence

      that would improperly affect the jurors' fairness and impartiality when they

      returned to deliberations.

      {¶ 12} Here, the trial court’s bailiff reported to the court that a male juror reported

the misconduct of a female juror, namely that an unidentified female juror had conducted

independent research as to the applicable definition of involuntary manslaughter. It was

reported that the juror shared this with another juror. We note also that the trial court

admitted to counsel that he failed to provide the standard, essential, preliminary

instructions regarding independent research at the start of trial. Ohio Jury Instructions,

CR Section 401.09 (Rev. Feb. 20, 2010), provides in part as follows:

      1.    REQUIRED ADMONITION.             It is important that you be fair and

      attentive throughout trial. Do not discuss this case among yourselves or

      with anyone else. * * *.

      ***

      4. REPORT VIOLATION. * * * You must also not talk with anyone else

      about this case during the trial. If anyone should attempt to discuss the

      case with you, report the incident to me or to the bailiff immediately.

      5.    WARNING.        Do not investigate or attempt to obtain additional

      information about this case from any source outside the courtroom. * * *
                                                                                         -16-


       {¶ 13} Upon the report of the misconduct, defense counsel requested that the court

investigate the allegation by conducting a brief voir dire of at least the two female jurors

on the panel to determine the scope of the juror misconduct and whether Fowler’s

substantial rights were affected thereby. While the law is clear that the investigation of

whether a juror has been influenced by outside information should not be left to counsel

for the parties, the trial court refused to perform the duty mandated by Remmer and R.C.

2945.03, namely to immediately conduct a hearing, with the participation of all parties, to

question the jurors and determine the scope of the independent research and its impact

upon the juror who performed it, as well as its impact upon any other affected jurors.

While the record reflects that the court instructed the jury to follow the law as provided by

the court prior to deliberations, curative instructions alone are insufficient to ensure that

Fowler was tried by an impartial jury. Since the court failed to employ the analysis set

forth in Hopfer, namely to determine whether the juror misconduct affected Fowler’s

substantial rights, we conclude that an abuse of discretion is demonstrated. Accordingly,

Fowler’s first assignment of error is sustained.

       {¶ 14} Having sustained Fowler’s first assignment of error, analysis of the

remaining assignments of error is not required. The judgment of conviction is reversed

and this matter is remanded to the trial court for further proceedings.

                                        ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Megan M. Farley
Mark J. Bamberger
Hon. Douglas M. Rastatter