[Cite as State v. Johnson,
2019-Ohio-4422.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180501
TRIAL NO. C-17TRC-42934A
Plaintiff-Appellee, :
O P I N I O N.
vs. :
MATTHEW JOHNSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 30, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ernst & Associates, LLC, and Matthew T. Ernst, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Matthew Johnson appeals from the trial court’s
entry convicting him, following a jury trial, of operating a vehicle while under the
influence of alcohol or drugs (“OVI”).
{¶2} In a single assignment of error, he argues that the trial court erred in
overruling his motion for a mistrial. Finding no merit to Johnson’s argument, we
affirm the trial court’s judgment.
Factual and Procedural Background
{¶3} Following a traffic stop, Johnson was cited for OVI in violation of R.C.
4511.19(A)(1)(a) and operating a vehicle without two functioning headlights, in
violation of R.C. 4513.14.1 A video of the traffic stop was given to Johnson during the
discovery process.
{¶4} On the morning of trial,2 which was approximately seven months after
he received the video in discovery, Johnson made a motion in limine to exclude
certain portions of the video in which Johnson and the arresting officer discuss
Johnson’s prior arrest for OVI. The court granted the motion, but because there was
no time to redact the video prior to trial, the trial court and the parties agreed that
the video would be muted during the objected to portions when played for the jury.
{¶5} At trial, Loveland Police Officer Jacob Salamon testified that he
initiated a traffic stop of Johnson’s vehicle after he witnessed the vehicle travel with
1 Johnson was additionally cited for a violation of R.C. 4511.19(A)(2), but that charge was
dismissed.
2 Only the OVI charge was tried to the jury. The headlight violation was submitted to the trial
court for judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
one headlight out, drive 35 m.p.h. in a 25 m.p.h. zone, and turn right without using a
signal. Officer Salamon also observed that the vehicle had no license plate light.
{¶6} After stopping Johnson’s vehicle, Officer Salamon noticed an odor of
alcohol emanating from it as he approached. Johnson had bloodshot and glassy eyes
and slurred several words as he spoke. When Johnson extended his arm to hand his
identification to the officer, he stopped short, and it appeared to Officer Salamon as
if Johnson’s depth perception was impaired. Johnson also dropped his insurance
information in his lap, causing Officer Salamon to notice that Johnson’s pants were
unzipped. Officer Salamon had to repeat several of his questions for Johnson, who
stated that earlier in the evening he had hit his head and gone through concussion
protocol while refereeing a hockey game. Johnson also stated that he had consumed
two beers.
{¶7} Johnson stumbled and seemed sluggish as he exited from his vehicle.
Officer Salamon continued to notice an odor of alcohol in the open air after Johnson
exited from the vehicle to perform field-sobriety tests.
{¶8} Officer Salamon conducted three field-sobriety tests on Johnson. He
first conducted the horizontal-gaze-nystagmus test, during which Johnson exhibited
six out of six clues of impairment. Johnson also performed poorly on the walk-and-
turn test, exhibiting six out of eight clues of impairment. And Officer Salamon
aborted the one-leg-stand test early because Johnson had put his foot down on the
ground more than three times. Officer Salamon testified that he placed Johnson
under arrest for operating his vehicle while under the influence of alcohol and
transported him to the police station. Johnson declined to take a breath test, and
became very agitated and combative.
{¶9} The video of the traffic stop was played for the jury, and it was muted
at the previously agreed upon times in which Johnson’s prior arrest was referenced.
The video was admitted as an exhibit and given to the jury to consider during
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OHIO FIRST DISTRICT COURT OF APPEALS
deliberations. The trial court instructed the jury that it was necessary to mute the
video at certain points. It stated that “[y]ou have to mute the sound during these
times, and there’s [sic] four times that are listed where it has to be muted.”
{¶10} During deliberations, the jury called the bailiff and told her that it had
accidentally failed to mute a six-second portion of the video that it had been
instructed not to listen to. The trial court sent the jury a note instructing it to
disregard what it had heard on that portion of the video. Defense counsel moved for
a mistrial. The trial court recognized that Johnson’s failure to raise any issue with
the video until the morning of trial had left the parties at a disadvantage as to the
procedure used to keep the statements out of evidence. It further found that any
error had been cured by the court’s instruction to disregard what the jury had heard
during that portion of the video, and it overruled the motion for a mistrial.
{¶11} Prior to accepting the jury’s verdict, the trial court asked the jury
foreman if the jury had been able to follow the court’s instruction with respect to the
video. The foreman responded affirmatively. The court then accepted the verdict,
which found Johnson guilty of OVI. The trial court separately found Johnson guilty
of the headlight violation.
Motion for Mistrial
{¶12} In his sole assignment of error, Johnson argues that the trial court
erred in overruling his motion for a mistrial. We review a trial court’s ruling on a
motion for a mistrial for an abuse of discretion. State v. Stidhum, 1st Dist. Hamilton
No. C-170319, 2018-Ohio-4616, ¶ 55. An abuse of discretion is more than an error of
law or of judgment; it is an unreasonable, arbitrary or unconscionable attitude on the
part of the court. Pembaur v. Leis,
1 Ohio St.3d 89, 91,
437 N.E.2d 1199 (1982). A
mistrial should only be granted where “the ends of justice so require and a fair trial is
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OHIO FIRST DISTRICT COURT OF APPEALS
no longer possible.” Stidhum at ¶ 55, quoting State v. Franklin, 62 Ohio St.3d 118,
127,
580 N.E.2d 1 (1991).
{¶13} We are mindful that the jury is presumed to have followed the curative
instruction issued by the trial court. Id. at ¶ 57. And in this case, the jury explicitly
stated on the record that it had, in fact, followed that instruction. But Johnson
argues that the introduction of evidence that he had previously been charged with
the same offense was so inflammatory that it overcame the presumption that the jury
had followed the court’s curative instruction and, consequently, that a fair trial was
no longer possible.
{¶14} The introduction of evidence that a defendant had previously been
charged with the same offense does not automatically entitle a defendant to a new
trial. Rather, a reviewing court must consider both the impact of the evidence on the
verdict and the strength of the remaining evidence after the offending evidence is
excised to determine whether the defendant was prejudiced. State v. Morris, 141
Ohio St.3d 399,
2014-Ohio-5052,
24 N.E.3d 1153, ¶ 25.
{¶15} Here, the evidence of Johnson’s guilt was overwhelming. After
initiating the traffic stop, Officer Salamon noticed an odor of alcohol as he
approached Johnson. He observed that Johnson had glassy and bloodshot eyes,
slurred several words, seemed to have an altered depth perception, and stumbled
after exiting from the vehicle. Johnson admitted to having consumed alcohol earlier
in the evening. He failed two field-sobriety tests and the third test was aborted
because Johnson was unable to complete it.
{¶16} In light of the strength of the evidence supporting Johnson’s
conviction and the curative instruction issued by the trial court, which the jury
affirmatively stated it had followed, we hold that the admission of the evidence on
the portion of the video that should have been muted was harmless error. The trial
court did not abuse its discretion in denying Johnson’s motion for a mistrial.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Johnson’s assignment of error is overruled, and the judgment of the
trial court is affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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