COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68036 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RONRICO FOSTER : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304892 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID C. SHELDON, Assistant 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 - 2 - O'DONNELL, J.: Ronrico Foster appeals his four jury convictions of possession of cocaine and marijuana in amounts equal to or greater than three times bulk amount, permitting a motor vehicle to be used in the commission of a drug abuse felony, and possession of criminal tools. For the following reasons, we reverse the convictions and remand the matter for retrial. The record reveals that sometime in December, 1993, employees of Federal Express advised federal drug enforcement officers about a package in transit from Winston Charles in Pasadena, California, to Yolanda Charles in Cleveland, Ohio. Federal D.E.A. agents, posing as delivery employees, arranged for delivery of the package to Yolanda Charles on December 9, 1994 with help from local law enforcement. Prior to the time of the purported delivery, appellant Foster arranged for and Lavonne Benford agreed to accept the package from Federal Express. After telling federal agents who were making the delivery that she was Shaunte Charles, the daughter of Yolanda Charles, Benford accepted delivery but never opened the package. Minutes later, federal and state officers executed a search warrant at the premises, confiscated the package, and advised that anyone interested could pick up the package at the Federal Express office. That same day, appellant Foster and co-defendants Horace Ford and Tomero Horton drove to the Federal Express office in - 3 - Brooklyn Heights, Ohio, Ford picked up the package and police arrested the trio as they tried to leave and confiscated the package. Horton entered into a plea bargain agreement with the State, but Ford and Foster exercised their right to jury trial. Following trial, the jury returned verdicts finding appellant Foster guilty of all four counts, and further finding Horace Ford not guilty of all counts. On appeal, Ronrico Foster assigns nineteen errors for review, the fourteenth of which we determine to be controlling. It states DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT AUTHORIZED ITS BAILIFF TO ENTER THE JURY ROOM WITHOUT THE PRESENCE OF THE DEFENDANT OR COUNSEL TO REREAD TO THE JURY PORTIONS OF JURY INSTRUCTIONS WHEN THE JURY HAD QUESTIONS. The record reflects in this case that during the deliberation phase of the trial, at 4:25 p.m. on a Friday afternoon of the jury's final week of service, the jury delivered the following communication to the court: "We the jury need the definitions of the following terms: "1) Possession "2) Aiding and Abeting [sic] "3) Knowingly "Is the term 'knowingly' included in possession." The record further reflects that the judge was not present at court when this communication was received, but that all counsel met in the court's chambers with court personnel, and had - 4 - a telephone conversation with the judge who instructed the bailiff to re-read portions of the instructions earlier given in answer to the jury's questions. The transcript then indicates, over objection proffered into the record, that the bailiff entered the deliberating room outside the presence of the court, counsel, and the defendants, and read the definitions of knowledge, possession, and aiding and abetting, to the jury. Shortly thereafter, the jury rendered its verdicts. Appellant claims this conduct violates R.C. 2945.10(G) and denies due process rights because the bailiff presided over a critical stage of the proceeding in the absence of the appellant. The State urges the record does not reflect prejudice to appellant or denial of a fair trial by reason of the bailiff's accurate re-reading of the appropriate portions of the charge done at the direction of the trial judge. Initially, we note that R.C. 2945.190(B) states in part: "(G) The court *** shall *** charge the jury ***." (Emphasis added.) Further, R.C. 2945.33 states in part: When a cause is finally submitted the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict, or are discharged by the court. ***. Such officer shall not permit a communication to be made to them, nor make any himself except to ask if they have agreed upon a verdict, unless he does so by order of the court. ***. (Emphasis added.) Bailiff misconduct in communicating to a deliberating jury will be presumed prejudicial where after such communication a - 5 - verdict is returned. See State v. King (1983), 10 Ohio App.3d 93, citing State v. Adams (1943), 141 Ohio St. 423, where a bailiff standing inside the doorway of the jury room after being informed the jury could not reach a decision replied, "You can't do that. You must reach a decision if you have to stay here for three months." In this case, of course, the bailiff acted at the direction of the court and correctly read the appropriate portion of the court's original jury charge. However, the gravamen of the situation is not the substance of the communication, but the manner in which it was delivered: during secret jury deliberations, not in open court, and by a bailiff who is not authorized by statute to charge a jury. It is elementary that discussions of law with a jury should be conducted by the judge on the record in open court in the presence of counsel and the defendant. In State v. Motley (1985), 21 Ohio App.3d 240, the court stated in the case headnote: 2. It is highly prejudicial to defendant for the trial court to send the court reporter into the jury deliberation room, out of the presence of the defendant, defendant's counsel and the trial judge himself, for the purpose of responding to a question posed by the jury. Here, at the direction of the trial judge, and presumably to expedite the deliberation process, the bailiff and a court reporter entered the jury deliberation room out of the presence of the defendant, defense counsel and prosecutor, and read a - 6 - portion of the court's charge in response to the jury's question. Nevermind that one of the two co-defendants was found not guilty and appellant was found guilty. The procedure utilized in this instance to respond to the deliberating jury's inquiry constitutes a violation of the defendant's constitutional right to a fair trial and is reversible error. Accordingly, this assignment of error is well taken, renders all the others moot, and for the foregoing reasons, the judgment of conviction is reversed, and the cause remanded for new trial. Judgment reversed. Cause remanded. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and DAVID T. MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .