[Cite as State v. Cenexant,
2023-Ohio-3388.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-11
:
v. : Trial Court Case No. 22 CRB 00545
:
JONA CENEXANT : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on September 22, 2023
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CHRIS BECK, Attorney for Appellant
ERIN J. MCENANEY, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Jona Cenexant appeals from the judgment of the
Municipal Court of Clark County convicting her of one count of domestic violence following
a jury trial. For the following reasons, we will affirm the judgment of the trial court.
I. Facts and Course of Proceedings
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{¶ 2} On February 20, 2022, Cenexant allegedly smacked her husband, Roland
Mercilien, with her hand and struck him with a broom. Mercilien, whose primary
language is Haitian Creole, contacted the Springfield Police Department on February 26,
2022, about the incident. The Springfield Police issued an arrest warrant for Cenexant.
She was charged with one count of domestic violence, a first-degree misdemeanor in
violation of R.C. 2919.25(A), and one count of assault, a first-degree misdemeanor in
violation of R.C. 2903.13(A).
{¶ 3} A jury trial was held on February 15, 2023. Mercilien and Springfield Police
Sergeant Aaron Hayes testified at the trial. Mercilien, through an interpreter, recalled the
events of February 20, 2022. Mercilien testified that Cenexant had physically abused
him. Videos Mercilien recorded of the physical abuse were shown to the jury during
Mercilien’s testimony. Sergeant Hayes testified about the investigation he conducted
after Mercilien reported the physical abuse on February 26, 2022. He confirmed that a
number of the pictures shown to the jury were accurate depictions of Mercilien’s physical
condition on that date. Mercilien had told Sergeant Hayes that the abuse occurred on
February 20, 2022.
{¶ 4} After the jury deliberations began, the trial court was twice advised by the
jury foreperson that the jury was deadlocked. After the first notification, the trial court
read a jury instruction for them based on the instruction approved by the Ohio Supreme
Court in State v. Howard, 42 Ohio St.3d 18,
537 N.E.2d 188 (1989). After the second
notification, Cenexant moved for a mistrial. The trial court overruled the motion and
stated that it would give the jury one more opportunity to attempt to reach a verdict. The
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trial court then gave the jury a second, shorter supplemental jury instruction that included
a restatement of the standard jury instruction on circumstantial evidence, which the trial
court had previously given to the jury before the commencement of jury deliberations.
{¶ 5} After further deliberation, the jury returned guilty verdicts on both counts.
The trial court merged the offenses, proceeded on the domestic violence count, and
sentenced Cenexant to 120 days in jail and placed her on probation for two years. The
trial court suspended all 120 days of the jail sentence and fined Cenexant $500 plus court
costs. Cenexant filed a timely notice of appeal.
II. Cenexant Waived All but Plain Error Regarding the Trial Court’s Failure to Voir
Dire and Determine the Qualifications of the Interpreter
{¶ 6} Cenexant’s first assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO PROPERLY VOIR
DIRE AND DETERMINE THE QUALIFICATIONS OF THE INTERPRETER.
{¶ 7} Cenexant contends that the trial court “failed to assure that the interpreter’s
qualifications were sufficient” under R.C. 2311.14 and Sup.R. 88. Appellant’s Brief, p. 7.
According to Cenexant, “the record does not reflect whether the interpreter was certified
by the Ohio Supreme Court or if the interpreter was qualified in any manner.” Id.
Further, the record does not reflect whether the trial court or counsel performed any voir
dire of the interpreter’s abilities.
Id.
{¶ 8} The State responds that Cenexant failed to object to the use of the interpreter
at trial and has waived all but plain error on appeal. Appellee’s Brief, p. 3. The State
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contends that “[t]here is nothing in the record to indicate that the interpreter’s
performance, or the Court’s failure to properly voir dire the interpreter in any way effected
[sic] the outcome of the trial. This being said, the Court’s actions in this case concerning
the interpreter were not plain error.” Id. at 4.
{¶ 9} There is no evidence in the transcript that the trial court conducted any voir
dire of the interpreter or identified any of the interpreter’s credentials. Rather, the trial
court made the following statements immediately after counsel had finished opening
statements as the court was preparing to swear in the first witness, Mercilien:
THE COURT: All right. At this time the state may call its first
witness.
MS. MCENANEY: Your Honor, we would call Roland Mercilien to
the stand.
THE COURT: Ladies and gentleman, this witness will be using an
interpreter. We are going to position the interpreter here so we are going
to bring a chair over so that he can sit here and face you as he does the
interpretation.
THE BAILIFF: Please raise your right hand.
THE COURT: I’m sorry, before you do that. The Court finds that
Laventure Mycthil is qualified by specialized knowledge, skill, experience,
training or education to serve as an expert interpreter and that the defendant
is able to understand and communicate through this interpreter.
Therefore, the Court appoints Laventure Mycthil as the interpreter in this
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case.
If you would please raise your right hand.
[WHEREUPON THE INTERPRETER WAS SWORN.]
Trial Tr. 74-75
{¶ 10} Apparently, the interpreter was used only during the testimony of Mercilien
to assist Mercilien in understanding the questions and then to translate his answers from
Haitian Creole into English so that the jury could understand his answers. The
interpreter does not appear to have been used at any other point of the trial or to assist
Cenexant.
{¶ 11} In State v. Bravo, 2017-Ohio-272,
81 N.E.3d 919 (9th Dist.), the Ninth
District explained the importance of the trial court’s duty to ensure the qualifications of an
interpreter. “ ‘ The failure to ensure that non-English speaking defendants are given the
same opportunity as others to be present, to speak in their defense and to understand
what is taking place, in whatever language they possess, reaches constitutional
proportions.’ ” Id. at ¶ 34, quoting State v. Pina,
49 Ohio App.2d 394, 401,
361 N.E.2d
262 (2d Dist.1975). “The constitutional rights implicated include due process, equal
protection, confrontation, and the effective assistance of counsel.” (Citations omitted.)
Id. These concerns primarily arise in situations involving a defendant who needs the
assistance of an interpreter. That was not the case here. Rather, the interpreter here
was necessary to assist the complaining witness, Mercilien. Indeed, there are notes in
the record stating that Cenexant’s prior defense counsel had advised the trial court in
October 2022 that Cenexant did not require an interpreter. Further, the testimony of
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Mercilien made it apparent that both he and Cenexant were fluent in Haitian Creole. Trial
Tr. 97-98.
{¶ 12} The Ohio Rules of Evidence, the Ohio Revised Code, and the Rules of
Superintendence for the Courts of Ohio also address and regulate the use of interpreters.
Evid.R. 604 states that “[a]n interpreter is subject to the provisions of these rules relating
to qualification as an expert and the administration of an oath or affirmation to make a
true translation.” R.C. 2311.14(A)(1) states that “[w]henever because of a hearing,
speech, or other impairment a party to or witness in a legal proceeding cannot readily
understand or communicate, the court shall appoint a qualified interpreter to assist such
person.” Further, R.C. 2311.14(B) provides that, “[b]efore entering upon official duties,
the interpreter shall take an oath that the interpreter will make a true interpretation of the
proceedings to the party or witness, and that the interpreter will truly repeat the statements
made by such party or witness to the court, to the best of the interpreter's ability.”
{¶ 13} The Supreme Court of Ohio has adopted Sup.R. 80 through 89 to address
the use and regulation of interpreters. Sup.R. 88(A) requires a court to appoint a
Supreme Court certified foreign language interpreter when such is necessary to allow a
witness or party to participate in the proceedings in a meaningful way. Sup.R. 88(D)
requires that any appointed interpreter be certified except under limited circumstances.
Sup.R. 81 through 85 address the requirements and process for certification, and Sup.R.
84 expressly notes that interpreters shall be subject to the “Code of Professional Conduct
for Court interpreters and Translators.” This Code “consists of 10 Canons which serve
as directives for interpreters in their service to the court, as well as provide guidance to
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the court in rendering a determination in conjunction with Evid.R. 702 regarding the
qualifications of any individual interpreter.” Bravo at ¶ 38. “The Canons require, inter
alia, accuracy and completeness, impartiality, proficiency, and a complete representation
of the interpreter's qualifications.” Id. “In addition, the Supreme Court of Ohio has
developed a handbook for courts to facilitate efforts to establish the qualifications of an
interpreter.” (Citations omitted.) Id.
{¶ 14} We have found no evidence in the trial transcript that the trial court engaged
in a colloquy with the interpreter to assess the interpreter’s qualifications. Rather, the
trial court simply made the conclusory statement that “The Court finds that Laventure
Mycthil is qualified by specialized knowledge, skill, experience, training or education to
serve as an expert interpreter and that the defendant is able to understand and
communicate through this interpreter.”1
{¶ 15} Despite the trial court’s failure to assess the interpreter’s qualifications,
Cenexant and her trial counsel did not object to the use of the interpreter or to the
interpreter’s performance or qualifications. Where a party fails to object at trial to an
interpreter’s performance, an appellate court need not consider the appellant’s complaint
regarding the effectiveness of the interpreter, because the appellant did not call to the
trial court’s attention the alleged interpreter problem at trial where such error could have
been avoided or corrected by the trial court. In re Marriage of Beynenson, 11th Dist.
Geauga No. 2012-G-3066, 2013-Ohio-341, ¶ 26, citing State v. Rivera,
99 Ohio App.3d
1 The trial court appears to have misspoken by stating that Cenexant rather than
Mercilien, the complaining witness, was able to understand and communicate through the
interpreter.
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325, 650 N.E.2d 906 (11th Dist.1994). Similarly, a party’s failure to object to the trial
court’s not qualifying an interpreter as an expert witness cannot be raised for the first time
on appeal. State v. Rosa,
47 Ohio App.3d 172, 175,
547 N.E.2d 1232 (8th Dist.1988).
{¶ 16} Because Cenexant did not raise any concerns about the interpreter with the
trial court, she has waived all but plain error on appeal. In re M.A.P., 12th Dist. Butler
Nos. CA2012-08-164, CA2012-08-165, 2013-Ohio-655, ¶ 59. “To prevail under the
plain-error standard, a defendant must show that an error occurred, that it was obvious,
and that it affected his substantial rights.” (Citation omitted.) State v. Obermiller,
147
Ohio St.3d 175,
2016-Ohio-1594,
63 N.E.3d 93, ¶ 62. An error affecting substantial
rights “must have affected the outcome of the trial.” (Citations omitted.) State v.
Barnes,
94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002). The law is well-established that
“[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long,
53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 17} We cannot conclude on the record before us that any errors committed by
the trial court regarding the use of the interpreter affected the outcome of the trial.
Cenexant has failed to identify any errors made by the interpreter or even allege that the
interpreter made any errors in translating Mercilien’s testimony. Further, it appears that
both Mercilien and Cenexant were fluent in Haitian Creole. Therefore, Cenexant could
understand Mercilien’s testimony without any assistance from the interpreter, and she
had the opportunity to work with her counsel to ensure that the interpreter was accurately
translating Mercilien’s testimony. Finally, Cenexant makes no argument that the results
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of the trial would have been different had the trial court performed a voir dire of the
interpreter.
{¶ 18} The first assignment of error is overruled.
III. Cenexant Has Not Shown Plain Error in the Trial Court’s Supplemental Jury
Instructions
{¶ 19} Cenexant’s second assignment of error states:
THE TRIAL COURT ERRED IN PROVIDING THE ALLEN/HOWARD
INSTRUCTIONS TWICE TO THE JURY AND IN PROVIDING AN
ADDITIONAL INSTRUCTION AS TO CIRCUMSTANTIAL EVIDENCE.
{¶ 20} In her second assignment of error, Cenexant contends that the trial court
erred in providing the jury instruction commonly referred to as the Allen or Howard
instruction after twice being informed by the jurors that they were unable to reach a
unanimous verdict. Appellant’s Brief, p. 7-8. According to Cenexant, the trial court’s
second Howard instruction, which was accompanied by a restatement of the
circumstantial evidence jury instruction, was “unduly coercive” and “put a thumb on the
scales of justice which swayed the jury to reach a verdict of conviction.” Id. at 9.
Therefore, “the trial court violated her right to a fair trial.” Id.
{¶ 21} The State responds that, although defense counsel asked for a mistrial
based on the jury’s being deadlocked, he did not raise any objection to the instruction
being given by the trial court. Appellee’s Brief, p. 5. The State contends that Cenexant
cannot establish plain error, because she cannot show that “the outcome of the trial
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clearly would have been otherwise had the jury not been given the circumstantial
evidence instruction a second time.” Id. at 6. Further, the State points out that the trial
court told the jury it was being sent back to deliberate one last time to see if it could reach
a verdict. According to the State, this instruction made clear that the jury was not being
ordered to reach a verdict, but instead the court was “merely encouraging the jury to do
everything within [its] means to reach a fair verdict prior to ordering a mistrial.” Id.
Finally, the State notes that the jurors had only been deliberating for a few hours when
they determined they were deadlocked, so it was not an abuse of discretion to ask them
to continue to deliberate. Id. at 5.
{¶ 22} “The Allen charge or ‘dynamite’ charge, as it is also known, arises from Allen
v. United States, 164 U.S. 492,
17 S.Ct. 154,
41 L.Ed. 528 (1896).” State v. Howard,
42
Ohio St.3d 18, 21,
537 N.E.2d 188 (1989). In Allen, the United States Supreme Court
had to decide whether a supplemental jury instruction given to a deadlocked jury passed
constitutional muster. In Howard, the Ohio Supreme Court provided the following
summary of the criticisms that had been raised about the original Allen charge since the
Allen case was decided:
The Allen charge has long been the subject of criticism from legal
scholars. The brunt of this criticism is directed at the potentially coercive
impact the language of the Allen charge can have on a jury. The criticism
centers on the effect of language advising the jury that a decision must be
reached, thereby depriving either the state or the defendant of the possibility
of a hung jury and a mistrial. In addition, and of particular importance to
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this court, is the criticism that the Allen charge is unduly coercive to
members of the jury in the minority because it, in effect, orders those
members to reevaluate their position in light of the fact that fellow jurors are
unswayed, but does not require jurors in the majority to undertake a
corresponding reevaluation. The effect of this charge is to place the
authority of the trial judge behind the position of the majority. This,
potentially, creates a force that few dissenting jurors can resist. It subtly
changes the requirement that the jury verdict be unanimous to one more
closely resembling majority rule.
Howard at 22.
{¶ 23} To address the concerns raised about the original Allen charge, the Howard
Court constructed and approved the following revised, supplemental jury instruction that
“uses portions of the Allen charge language while ratifying the principle of neutrality
contained in the [American Bar Association] standard”:
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 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,
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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.
Howard at 25-26.
{¶ 24} In the instant case, the trial court was confronted with a message from the
jury foreperson that the jury was deadlocked. As a result, the trial court read verbatim
the supplemental instruction that was blessed by the Howard Court. The trial court
advised the jury as follows:
THE COURT: We are back on the record. The Court has been
informed that the jury is having a difficult time in reaching a verdict so we
are going to bring them back in and I’m going to give them further
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encouragement along that lines.
(WHEREUPON THE JURY WAS BROUGHT BACK INTO THE
COURTROOM.)
THE COURT: All right. Please be seated. We are back on the
record. Has a foreperson been selected? Okay. The Court has been
advised that your panel is having a difficult time in reaching a unanimous
verdict; is that correct?
FOREPERSON: That’s correct.
THE COURT: All right. This is a delicate time during a jury’s
deliberations. The principle [sic] mode provided by our constitution and
laws for deciding questions of fact in criminal cases is by a jury verdict. In
a large portion of cases, absolute certainty cannot be obtained or expected.
All though [sic] the verdict must reflect the verdict of each individual juror
and not mere acquiescence in the conclusions of your fellow jurors. Each
question submitted to you, I’m sorry, each question submitted to you should
be examined with proper regard in deference to the opinion of others. You
should consider it desirable that the case be decided.
You are selected in the same manner and from the same source is
[sic] any other future jury would be. There is no reason to believe that this
case will ever be submitted to a jury that’s more capable, more 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
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the case if you can conscientiously do so. You should listen to one
another’s arguments with the disposition to be persuaded. Do not hesitate
to re-exam [sic] your views and change your position if you are convinced it
is erroneous. If there is disagreement, all jurors should re-exam [sic] 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 convictions should ask themselves
whether they might not reasonably doubt the correctness of a judgment not
concurred in by all the other jurors.
With that additional instruction, I’m going to ask that you return to the
jury room with an effort to obtain a verdict. Knock on the door again to
summon the bailiff to indicate if and when a verdict is reached or if you are
still deadlocked.
Trial Tr. 138-140.
{¶ 25} As we noted, this supplemental jury instruction is verbatim the supplemental
jury instruction approved by the Ohio Supreme Court in Howard. Cenexant does not
appear to take issue with this first supplemental jury instruction. But after the jury
resumed its deliberations, the jury foreperson once again informed the trial court that it
was deadlocked. This led to the following exchange between the trial judge and counsel
and the following second supplemental jury instruction:
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THE COURT: All right. We are back on the record. The Court
has been advised that the jury has not reached a decision. I am going to,
I have already read the Howard instruction. This is what I’m going to tell
you what I plan to say to the jury.
I’m going to say, has, ask if there has been any movement. Doesn’t
matter what direction and if not, I’m going to say that in this day of television
movies we are accustom [sic] to seeing exactly who did what in plain view.
Throughout most of our history, however, jury verdicts were rendered based
solely upon oral testimony. You are the sole judges of credibility of the
witnesses. You determine whether the exhibits weight [sic] in favor of their
credibility or against it and I’m going to read the definition circumstantial
evidence that I gave them before.
Does anybody have an objection to that further instruction?
MR. DIBARTOLA: No from the State, Your Honor.
MS. MCENANEY: No, Your Honor.
MR. MCMULLEN: Not to the instruction, Your Honor. I would
advise, ask at this point for a mistrial. They have indicated twice now they
can’t come to a verdict.
THE COURT: This is going to be the last effort and if it, if there isn’t
progress after this, then I’m going to have to declare a mistrial so.
All right. You can bring the jury in.
…
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THE COURT: Please be seated. All right. We are back on the
record. I’m going to ask the foreperson of the jury, have you had any
progress in your negotiations?
THE FOREPERSON: No.
THE COURT: Okay. By progress I mean, and I don’t want to know
anything more than this, has there been any change in people’s the jurors’
attitude’s [sic] at this point?
THE FOREPERSON: No.
THE COURT: Okay. All right. In this day of television and
movies, we are accustom [sic] to seeing exactly who did what in plain view.
It’s become part of what we expect when we watch a show on TV.
Throughout most of our history, however, jury verdicts have been rendered
based solely upon testimony. You are the sole judges of credibility, the
witnesses. You determine whether the exhibits weigh in favor of their
credibility or against it.
With that being said, I am going to read again the instruction I gave
you before as it relates to circumstantial evidence.
Circumstantial evidence is the proof of facts or circumstances by
direct evidence from which you may reasonably infer other related or
connected facts, which naturally and logically follow, according to the
common experience of mankind. To infer, or to make an inference, is to
reach a reasonable conclusion of fact that you may, but are not required to,
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make from other facts that you find have been established by direct
evidence. Now whether an inference is made rests entirely with you.
I already gave you in the previous charge the instruction that no other
jury would be presumed to be any more capable then [sic] you in resolving
this case.
It’s not [sic] a quarter to six. I’m going to send you back into the jury
room. I know that might be frustrating but with the instruction that I just
gave, I would like for each of you to reconsider your position in light of the
testimony that we’ve heard in the courtroom today, and if you can honestly
and fairly reconsider your position, the decision is yours as you assess the
credibility, but this charge is given to you. So I’m going to ask you one last
time to go back and see if you can reach a verdict.
Trial Tr. 140-143.
{¶ 26} The trial court did not issue the full Howard instruction a second time.
Rather, the trial court simply reminded the jury that no other jury would be presumed to
be any more capable than this jury in resolving the case. Then the trial court read again
for the jury the standard jury instruction on circumstantial evidence.
{¶ 27} When reviewing the trial court’s supplemental jury instruction, we must
consider whether a trial court deviated from the language approved in Howard. “If a court
deviates from the Howard language, the court must ensure that the charge satisfies the
concerns of the Howard opinion. In particular, a court must ensure that the instruction
(1) encourages a unanimous verdict only when one can conscientiously be reached,
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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.” (Citations omitted.) State
v. Clifton, 172 Ohio App.3d 86,
2007-Ohio-3392,
872 N.E.2d 1310, ¶ 31 (4th Dist.).
Cenexant contends that the second supplemental jury instruction “which added the
restatement of the circumstantial evidence instruction … went so far as to be unduly
coercive and to put a thumb on the scales of justice which swayed the jury to reach a
verdict of conviction.” Appellant’s Brief, p. 9. We do not agree.
{¶ 28} The trial court stated the Howard charge verbatim after the jury was
deadlocked the first time. When the jury was deadlocked the second time, the trial court
explained that it was going to deliberate one more time and reminded the jury of the
charge on circumstantial evidence. In doing so, the trial court was careful to call on all
jurors to reevaluate their opinions and made it clear that this was the last time the court
would ask them to attempt to reach a verdict. Although duplicative, the second
supplemental jury instruction cannot be construed as coercive or erroneous, let alone
plain error. State v. Stephenson, 4th Dist. Adams No. 12CA936, 2013-Ohio-771, ¶ 16.
{¶ 29} The second assignment of error is overruled.
IV. Conclusion
{¶ 30} Having overruled both assignments of error, the judgment of the trial court
will be affirmed.
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WELBAUM, P.J. and HUFFMAN, J., concur.
