Opinion

State v. Brown

2023 Ohio 4452

Court: Ohio Court of Appeals
Filed: Dec 8, 2023
Status: Published
On the bench: Mayle
Cited by: 1 cases
Authority: More cited than 45.0%

The opinion

[Cite as State v. Brown, 2023-Ohio-4452.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. WD-23-001

WD-23-008

Appellee

Trial Court No. 2021-CR-0575

2022-CR-0220

Marquise L. Brown DECISION AND JUDGMENT

Appellant Decided: December 8, 2023

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and

David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

Jeffrey P. Nunnari, for appellant.

*****

MAYLE, J.

{¶ 1} In this consolidated appeal, following a jury trial, defendant-appellant,

Marquise L. Brown, appeals the February 9, 2023 judgments of the Wood County Court

of Common Pleas, convicting him of misdemeanor assault and felonious assault with a

firearm specification. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} On December 2, 2021, Marquise Brown was indicted in Wood County case

No. 2021-CR-0575, on charges of obstructing justice, a violation of R.C. 2921.32(A)(5)

and (C)(3), and misdemeanor assault, a violation of R.C. 2903.13(A) and (C). On June 2,

2022, he was indicted in Wood County case No. 2022-CR-0220, on charges of felonious

assault, a violation of R.C. 2903.11(A)(2) and (D)(1)(A), with an accompanying firearm

specification under R.C. 2945.145(A), and obstructing official justice, a violation of R.C.

2921.32(A)(5) and (C)(4). The obstruction charges were dismissed in both cases, and the

matter proceeded to a jury trial on the assault and felonious assault charges only, along

with the firearm specification.

{¶ 3} According to the state, on October 2, 2021, around 11:40 p.m., Bowling

Green police responded to a call of shots fired near Liquid Bar and Tiki Bar in downtown

Bowling Green. Police arrived to find that a man, D.M., had been shot twice in the leg in

a parking lot alongside Howard’s, another nearby bar. The incident happened during the

school year, when numerous young adults were out frequenting the downtown bars.

Police officers spoke to witnesses and gathered footage from security cameras mounted

along the downtown streets, as well as footage from a private security camera located

outside Liquid Bar.

{¶ 4} Witnesses told police that after the shots were fired, they saw several males

run to a white vehicle in a nearby parking lot and flee. One witness described that one of

the males slipped and dropped something, then picked it up. A description of the vehicle

and its license plate number were provided to police, as was a photograph of the vehicle,

which had been taken by a witness.

{¶ 5} The vehicle description and license plate number enabled police to locate the

vehicle, which they spotted on East Wooster Street heading toward I-75. Officers

initiated a stop of the vehicle, an Infinity, ordered the five passengers out of the vehicle,

and transported them to the Bowling Green Police Department. Brown was one of the

passengers. No firearm was found in the vehicle, but police located a satchel.

{¶ 6} All five passengers were questioned, including Brown. Brown denied being

at the parking lot or running from the parking lot. He also denied that he had been

involved in any confrontation. The five passengers of the Infinity were swabbed for

gunshot residue. Brown tested positive for four particles of gunshot residue on his left

hand and one particle on his right hand. Two of the passengers tested negative. The

other two tested positive for one particle each. None of the men were arrested that night.

{¶ 7} Detectives collected and thoroughly reviewed the security camera footage.

They were able to identify the Infinity and its occupants and piece together their

movements for the approximately 20 minutes preceding the shooting and immediately

thereafter. The men got in line at Liquid Bar. While standing in line, a man who appears

to be Brown was wearing a satchel like the one found in the Infinity. He and the other

occupants of the Infinity appeared to be talking to another group of men who were also in

line. While those men’s backs were to Brown, Brown pulled something out of the

satchel—it appeared to be a gun—and put it in the pocket of his sweatpants. Soon after,

Brown punched one of the men (forming the basis for the misdemeanor assault charge

here). He motioned for the men to follow him, and they all left the frame of the video.

Within seconds, four gunshots rang out and the young people in the streets began

running.1 The five men from the Infinity ran across the street. Consistent with what was

reported by one of the witnesses, Brown dropped something while he was running and

picked it up. Moments later, the Infinity came into view and traveled north.

{¶ 8} Four shell casings were collected at the scene. It was determined that the

casings had all been fired from the same gun. The gun was recovered in March of 2022.

A bullet lodged in D.M.’s leg was eventually extracted and identified as having been

fired by that gun. The gun belonged to Brown’s brother, K.B., who reported it stolen on

February 17, 2022. An officer had seen K.B. and Brown’s mother in the vicinity of the

traffic stop and at the police station the night of the shooting.

{¶ 9} Brown presented two witnesses, one who testified that the shooter may have

been wearing a gray hoodie, and one who believed the shots had been fired by a person in

a red vehicle. It had been suggested during trial that the group of men that Brown and the

other Infinity occupants were talking to, had arrived in downtown Bowling Green in a red

vehicle, and a red car was seen leaving the scene as officers were arriving. The victim

also acknowledged seeing a red car in the parking lot before he was shot, but he also

testified that he saw Brown and his friends (who he recognized from high school sports)

There was testimony that the audio lagged about 30 seconds behind the video on the

recording.

and they seemed to be arguing with the people in the red car. D.M. did not see who shot

him, but the shots did not come from the direction of the red car. D.M.’s nephew, who

was with him that night, said that the shots were directed at the red car, but this testimony

potentially conflicted with information he provided the night of the shooting.

{¶ 10} The jury convicted Brown of misdemeanor assault, felonious assault, and

the firearm specification. The trial court sentenced Brown to 180 days in jail in Wood

County case No. 2021-CR-0575. It sentenced him to a minimum prison term of six years

and a maximum prison term of nine years in Wood County case No. 2022-CR-0220, plus

three years on the firearms specification to be served consecutively. It ordered the

sentences in case Nos. 2021-CR-0575 and 2022-CR-0220 be served concurrently.

{¶ 11} Brown appealed. He assigns the following error for our review:

THE TRIAL COURT’S UNJUSTIFIED MID-TRIAL

DESIGNATION OF JUROR #6 AS AN ALTERNATE JUROR OVER

APPELLANT’S OBJECTION AMOUNTS TO STRUCTURAL ERROR

MANDATING REVERSAL AND A NEW TRIAL.

II. Law and Analysis

{¶ 12} Brown argues that the trial court demonstrated judicial bias constituting

structural error requiring reversal when, after the state presented its last witness, it

designated Juror #6 an alternate juror instead of using its usual procedure of selecting

alternate jurors randomly. Before we address the merits of Brown’s arguments, we will

describe the trial court’s usual procedure for selecting alternates and summarize the

events that led to the trial court’s decision to designate Juror #6 an alternate.

A. The Process for Selecting Alternates and the Decision

to Designate Juror #6 an Alternate Juror

{¶ 13} The trial court’s usual procedure for picking a jury is to select 14 jurors

from the venire. After both sides have rested, the court puts the juror’s numbers into a

basket and allows the defendant to draw two numbers from the basket. The two jurors

whose numbers are drawn are designated as alternate jurors. Here, instead of randomly

drawing numbers for both alternate positions, the trial court designated Juror #6 an

alternate and allowed Brown to draw only one juror’s number to serve as the second

alternate. The reasons for that are as follows.

{¶ 14} As permitted under Crim.R. 24(J), the trial court allowed jurors to submit

written questions for witnesses. In accordance with that rule, before reading a question to

a witness, the court provided counsel the opportunity to object to the questions on the

record and outside the hearing of the jury. Where it was agreed that a question would be

asked, the court read the question to the witness and permitted counsel to reexamine the

witness regarding matters addressed by the jurors’ questions. The court instructed the

jurors that if they submitted a question and it was not asked, they should not draw any

conclusions concerning the decision not to ask the question. It told the jurors that if they

did not have a question, they should write “no question” on their paper and pass the paper

down to be collected with the others. The court explained that this procedure would

“ensure anonymity for the particular jurors who submit questions.”

{¶ 15} One of the jurors was especially engaged and proposed numerous questions

over the course of the trial (as determined by the fact that many questions were written in

the same handwriting). The state characterized this juror’s questions as “accusatory,

conspiratorial, and in some cases not even questions that the Court would be able to

articulate.” Despite its assurance of anonymity, the trial judge undertook to determine

which juror had proposed the questions the state found objectionable. The trial judge

suspected that it was Juror #6. After one of the state’s witnesses finished testifying, the

trial judge watched him and observed that he was passing down several sheets of paper.

Upon reviewing the questions, he saw that multiple questions were written in the same

handwriting. Based on these observations, the trial judge concluded that Juror #6 had

proposed the questions about which the state was complaining.

{¶ 16} The trial judge went into the jury room “in an attempt to just be congenial”

and asked the jurors “how they were doing,” “how they [we]re physically doing,”

whether they were having “any problems parking,” and “things like that.” He then asked

them if they had “any questions relative to that, those kinds of issues.” Juror #6 asked the

trial judge why he hadn’t asked his questions. The trial judge told him he could not

answer that question. The next morning, on the record, the trial judge reminded the

jurors that they may not speculate as to why their questions were not being asked and

provided several examples of why a question may not be asked (e.g., the rules of

evidence, relevance, not the right witness to ask, etc.). Off the record, he also told one of

the state’s attorneys who he believed had submitted the questions—it is unclear from the

record whether defense counsel was present when the juror’s identity was first disclosed

to the state.

{¶ 17} After its last witness testified, the state moved to dismiss Juror #6 on the

basis that he had exhibited “potential animus or bias toward law enforcement” in his

questions and had shown “bravado in his bias” by asking the trial judge why his

questions weren’t being asked. It provided examples of the questions it found

objectionable:

BG police Lab has no video editing capabilities?

If you could not charge the individuals with anything that

night/morning, how could you impound their vehicle?

Is it video or report that supercedes one or the other[?] [W]hich is

more official?2

The trial judge recounted for the attorneys his investigation into the juror’s identity. The

state cited numerous cases that it claimed granted the court discretion to remove Juror #6.

The state believed that Juror #6 also asked if there was a way to alter striations on a

bullet casing, but this question does not appear to have come from Juror #6—the

handwriting and color of ink is completely different than the other proposed questions

attributed to Juror #6.

{¶ 18} Defense counsel objected. He argued that the cases relied upon by the state

were distinguishable. He disagreed that the juror had exhibited bias and pointed out the

oddity of allowing jurors to ask questions, but then taking the position “we don’t like the

questions” so “let’s remove the juror.” His position was that the juror had merely

exhibited curiosity and was trying to get clear information in order to make the credibility

determinations that he was required to make. Although defense counsel agreed that some

of the questions may have been “odd,” he disagreed that the questions exhibited bias.

{¶ 19} At some point, the state altered its position and requested that Juror #6 be

designated an alternate rather than dismissed. The trial court granted the motion. It

explained: “I don’t know that there’s been any kind of proof that [Juror #6] is either

biased or not biased. But the State feels that he is biased. And I think the best resolution

to ease or ameliorate their feelings of bias is to designate [Juror #6] an alternate. * * *

Juror #6 will be designated as alternate number one. Alternate number two will be

chosen by lot.”3

{¶ 20} Brown claims that by designating Juror #6 an alternate juror, the trial court

exhibited bias in favor of the state by “act[ing] in a manner to assist the state in ferreting

In discussing logistical issues about how to preserve this issue for appellate review, the

trial court said that it would seal the questions but make them available for review by

appellate counsel. The court said that by doing so it was violating its promise to the

jurors that their notes and questions would be “A, anonymous, and B, would be

destroyed.” Crim.R. 24(J)(2), however, requires the trial court to “[r]etain a copy of each

proposed question for the record.” In other words, the court should not promise jurors

that it will destroy their proposed questions.

out a juror with which it had concerns” and by “acquiesce[ing] in [the state’s] request to

effectively remove the juror in question from the jury panel without justification.” He

insists that this error constitutes structural error requiring reversal.

B. Structural Error

{¶ 21} A structural error is an error that affects the framework within which a trial

proceeds rather than a mere error in the trial process itself. State v. West, 168 Ohio St.3d

605, 2022-Ohio-1556, 200 N.E.3d 1048, ¶ 25. It is “a violation of the basic

constitutional guarantees that define the framework of a criminal trial; it is not

susceptible to harmless-error review but rather, when an objection has been raised in the

trial court, is grounds for automatic reversal.” Id. at ¶ 2, citing State v. Jones, 160 Ohio

St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 2, 20.

{¶ 22} Structural error is recognized only in limited circumstances where

fundamental constitutional rights are involved. Id. at ¶ 26. Examples include “denial of

counsel to an indigent defendant, the denial of counsel of choice, the denial of self-

representation at trial, the denial of a public trial, and the failure to instruct the jury that

the accused’s guilt must be proved beyond a reasonable doubt.” Id., citing Weaver v.

Massachusetts, 582 U.S. 286, 295, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017); United

States v. Davila, 569 U.S. 597, 611, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013). The Ohio

Supreme Court has recognized that “[t]he presence of a biased judge on the bench is, of

course, a paradigmatic example of structural constitutional error.” State v. Sanders, 92

Ohio St.3d 245, 278, 750 N.E.2d 90 (2001). But it has also recognized that “[r]eplacing a

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juror with an alternate juror * * * does not invoke a structural-error analysis.” (Emphasis

added.) State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 196, citing

State v. Jennings, 2017-Ohio-8224, 100 N.E.3d 93, ¶ 9-13 (8th Dist.).

{¶ 23} Here, Brown claims that the trial court demonstrated favoritism toward the

state during the trial—which, if true, would be judicial bias, and therefore structural

error—when it designated Juror #6 an alternate at the state’s request.

C. Authority to Remove a Juror

{¶ 24} Under R.C. 2945.29, “[i]f, before the conclusion of the trial, a juror

becomes sick, or for other reason is unable to perform his duty, the court may order him

to be discharged. In that case, if alternate jurors have been selected, one of them shall be

designated to take the place of the juror so discharged * * *.” Additionally, a trial court

in its discretion may dismiss a juror “‘when it determines that a juror possesses either

enmity or bias toward a party or determines that for some other reason a juror is not

impartial or is otherwise unsuitable for service.’” State v. Smith, 6th Dist. Lucas No. L-

19-1075, 2020-Ohio-5445, ¶ 28, quoting State v. Midwest Pride IV, Inc., 131 Ohio

App.3d 1, 20, 721 N.E.2d 458 (12th Dist.1998).

{¶ 25} Courts have found no abuse of discretion in a trial court’s decision to

remove a juror in cases where the juror was observed laughing inappropriately,

“exhibiting odd behavior, and was not forthcoming in providing her address”; where the

juror “threatened or intimidated other jurors and disrupted deliberations”; where the juror

“cursed at other jurors and actively humiliated them through the use of vindictive

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personal attacks such as calling them ‘stupid’ and ‘monkeys’”; where the juror “was

unstable, disruptive to the deliberations, and a safety threat to the female jurors”; and

where the juror was seen talking to the defendant’s mother. State v. Zaragoza, 2d Dist.

Montgomery No. 26706, 2-16-Ohio-144, ¶ 21, 23, citing State v. Segines, 8th Dist.

Cuyahoga No. 89915, 2008-Ohio-2041; Shotikare v. U.S., 779 A.2d 335, 340 (D.C.

2001); State v. Arnold, 629 S.E.2d 807 (Ga.2006); State v. Pruitt, 11th Dist. Trumbull

No. 2001-T-0101, 2003-Ohio-1882, ¶ 19.

{¶ 26} The state maintains that “the removal of a biased juror does not trigger

structural error analysis.” We begin by observing that the trial court did not find that

Juror #6 was biased; it found only that the state believed that Juror #6 was biased. Brown

acknowledges that a trial judge has discretion to remove a juror “whenever facts are

presented which convince the trial judge that the juror’s ability to perform his duty as a

juror is impaired” and that “a party complaining about juror misconduct must establish

prejudice”—i.e., that one of the jurors at his trial, because of partiality or bias, was

incapable or unwilling to decide the case solely upon the evidence. See e.g., Smith at ¶

33 (concluding that the defendant could not demonstrate prejudice because “the trial

court’s dismissal of certain prospective jurors did not preclude him from receiving a fair

trial by an impartial jury, as is his right,” because it replaced those jurors with “equally

capable jurors”).

{¶ 27} To that end, while Brown maintains that the trial court abused its discretion

when it designated Juror #6 an alternate despite being unconvinced that he was actually

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biased, this is not the error he has assigned. He assigns error—structural error—because

he maintains that the trial court demonstrated favoritism toward the state when it

designated Juror #6 an alternate—i.e., that the trial judge demonstrated bias in favor of

the state.

{¶ 28} While we are clarifying the issue presented for review and making clear

that the trial judge did not find that Juror #6 was biased—he said that he did not know

that there had been any kind of proof that Juror #6 was “either biased or not biased”—we

take this opportunity to also correct a mischaracterization the state repeatedly makes in its

brief. Specifically, according to the record, the trial judge told the parties that when he

spoke with the jurors and asked them if they had any questions, Juror #6 asked, “[C]an I

ask you about why my question wasn’t asked.” The trial judge told Juror #6 that he could

not and would not answer that question, and the trial judge told the attorneys that “[t]hat

was the discussion.” Nevertheless, the state represents in its brief—numerous times—

that the trial judge was “confronted by an angry juror”; that Juror #6 “angrily confronted”

the trial judge; that Juror #6’s responses during voir dire hinted that he may become

“combative”;4 that the trial judge had to “quell[] the umbrage” Juror #6 felt toward him;

We note that the attorneys engaged in extensive dialogue with Juror #6 during jury

selection, and it was clear that Juror #6 would be especially inquisitive:

State: * * * If the Court tells you that circumstantial evidence and

direct evidence have the same probative value, could you return a verdict of

guilty without direct evidence? I don’t mean to pick on you, [Juror #6], but

you seem curious. Maybe, maybe not?

13.

and that there had been a “confrontation” between Juror #6 and the trial judge. Nowhere

in the record did the trial court describe Juror #6 as “angry,” “confrontational,”

“combative,” or feeling “umbrage.” The state has taken unwarranted liberties with the

record in describing him as such.

Juror #6: Well, I’m just wondering how many questions we could

have, say, to ask the judge, aside from the courtroom. If we have questions

about what might be circumstantial and what might be perceived, can you

clarify this is what we think collectively? As long as I’m able to reference

someone for clarification. I would hate to make a decision –

State: Would you be able to draw inferences from facts you find?

Juror #6: Facts, correct, yes.

State: So if there are facts there, you can determine. Are you able to

draw the inferences from that?

Juror #6: Yes.

***

State: Will you weigh all the evidence and based on that render a

verdict? [Juror #6]?

Juror #6: I would have to know everything about everything. As

long as all the questions that I have were answered, yes. But I would want

to know as much as I could from as many sources as I could.

***

Defense counsel: * * * Do you have a problem with the case that

there’s going to be quite a bit of circumstantial evidence and you’re trying

to figure out what that all means? I think you said I like to be really clear.

Are you going to have a problem sorting all that out if a lot of this case

turns out to be circumstantial evidence?

[Juror #6]: If I have the resources to go to, to my satisfaction, and I

think reasonable is probably the operative word, then yes, I would be

satisfied if I got clarification on any question I might have as to

circumstantial evidence, then yes.

If the state felt that Juror #6’s inquisitive nature indicated that he would be

“combative,” the state could have used a peremptory challenge to exclude him

from the panel. The state did not use all of its peremptory challenges. Regardless,

as discussed above, the judge did not describe Juror #6 as being “combative” when

he asked the judge a question in the jury room.

14.

D. Judicial Bias

{¶ 29} As an initial matter, the state argues that this court lacks jurisdiction “to

disqualify a judge or magistrate or to vacate a judgment on the basis of judicial bias.” It

also claims that a defendant cannot raise judicial bias for the first time on appeal. It is

true that “a court of appeals has no authority to hear a disqualification matter or to declare

a trial court’s judgment void on the basis of judicial bias,” however, “‘a trial court’s

judgment may be reversed due to bias if the bias or prejudice violated the defendant’s

right to due process and deprived the defendant of a fair hearing.’” State v. Graf, 2022-

Ohio-2169, 191 N.E.3d 539 (2d Dist.) at f.n. 3, quoting Cleveland v. Goodman, 8th Dist.

Cuyahoga No. 108120, 2020-Ohio-2713, ¶ 15-16. Moreover, Brown objected to the

underlying conduct that he claims demonstrated judicial bias, in our view, preserving that

error for appeal. See State v. Gregory, 4th Dist. Gallia No. 16CA3, 2016-Ohio-7940, ¶

12, 16 (Harsha, J., concurring) (recognizing that appellate courts routinely address the

merits of judicial-bias claims that arise during trial).

{¶ 30} “It is well settled that a criminal trial before a biased judge is

fundamentally unfair and denies a defendant due process of law.” State v. LaMar, 95

Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S.

570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Judicial bias has been described as “‘a

hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the

litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of

the judge, as contradistinguished from an open state of mind which will be governed by

15.

the law and the facts.’” State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d

97, ¶ 48, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191

(1956), paragraph four of the syllabus.

{¶ 31} “If the record evidence indicates that the trial was infected by judicial bias,

the remedy is a new trial.” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73

N.E.3d 414, ¶ 43, citing Dean at ¶ 2. However, “‘we presume that a judge is unbiased

and unprejudiced in the matters over which he or she presides, and the appearance of bias

or prejudice must be compelling in order to overcome the presumption.’” (Citations

omitted.) Graf at ¶ 16, quoting Goodman at ¶ 18. A trial judge’s “less-than-model

behavior will not rise to the level of bias unless it permeated the trial.” (Internal

quotations and citations omitted.) State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076,

75 N.E.3d 1185, ¶ 76.

{¶ 32} In Cepec, for instance, the Ohio Supreme Court found no structural error

on the basis of judicial bias, even though the trial judge questioned witnesses, thereby

eliciting testimony unfavorable to the defendant. It reasoned that there had been no

allegations that the judge’s demeanor was hostile, the judge did not appear to be

badgering witnesses, the questions often served to clarify previously-offered testimony,

and the judge interrupted both attorneys, thereby reducing the appearance of bias.

{¶ 33} In State v. Dennison, 10th Dist. Franklin No. 12AP-718, 2013-Ohio-5535,

¶ 48, the Tenth District refused to find judicial bias where the trial judge (1) told defense

counsel during a sidebar that it was not the court’s duty to instruct him on how to try a

16.

case; (2) outside the presence of the jury, told defense counsel not to touch the jury box

because it was a pet peeve of his; (3) outside the presence of the jury, chastised defense

counsel for rolling his eyes; (4) responded ‘you want to play tough, we can play tough,’

after defense counsel complained that he was being treated differently than the state’s

attorney; (5) allowed the state to re-cross twice, but only allowed defense counsel to re-

cross once; and (6) allowed the state to split closing arguments between two prosecutors.

{¶ 34} And in State v. Lester, 3d Dist. Putnam No. 12-08-03, 2008-Ohio-6070, ¶

46, the Third District found no bias in favor of the state where the trial judge called both

counsel to the bench, questioned whether the state had proven an element of the offense,

and then allowed the state to reopen direct examination to present evidence of the missing

element.

{¶ 35} Here, Brown’s claim of judicial bias revolves entirely around this one

action taken by the trial judge. Brown does not complain about any other rulings and

does not otherwise complain about the trial judge’s treatment of him or his attorney. All

the conversations about Juror #6 took place outside the presence of the jurors. The jurors

went into deliberations unaware that Juror #6 had been non-randomly designated an

alternate juror and without knowledge that the trial court had taken this action to appease

the state. While the trial judge’s decision to designate Juror #6 an alternate juror may

have been unreasonable because it was done in a manner contrary to the trial judge’s

usual procedures, under circumstances where it was not shown that the juror was unable

to perform his duty, and without the trial court making a finding of juror bias, we cannot

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say that this single act demonstrates a compelling appearance of judicial bias that

permeated the trial so as to constitute structural error.

{¶ 36} We find Brown’s sole assignment of error not well-taken.

III. Conclusion

{¶ 37} Although it may not have been reasonable for the trial judge to designate

Juror #6 an alternate juror in a manner contrary to his usual procedures, under

circumstances where it was not shown that the juror was unable to perform his duty, and

without the trial court making a finding of juror bias, Brown has failed to demonstrate a

compelling appearance of judicial bias in favor of the state or error that rises to the level

of a violation of the basic constitutional guarantees that define the framework of a

criminal trial. As such, he has not shown that structural error occurred here. We,

therefore, find his assignment of error not well-taken.

{¶ 38} We affirm the February 9, 2023 judgments of the Wood County Court of

Common Pleas. Brown is ordered to pay the costs of this appeal under App.R. 24.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.