COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68808 : ACCELERATED DOCKET CHARLES CROSBY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : EUGENE BUTCHER, ET AL. : PER CURIAM : Defendants-Appellees : : DATE OF ANNOUNCEMENT SEPTEMBER 28, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 264475 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff Appellant: For Defendants-Appellees: KENNETH A. BIRNE, ESQ. WILLIAM M. KOVACH, ESQ. JERALD A. SCHNEIBERG, ESQ. 6000 Lombardo Center Peltz & Birne Suite 520 1880 Midland Building Seven Hills, Ohio 44131-2579 101 Prospect Avenue, West Cleveland, Ohio 44115 -2- -3- PER CURIAM: This appeal was filed and briefed as an accelerated appeal pursuant to Local App.R. 25. Plaintiff-appellant, Charles Crosby, appeals a jury verdict rendered in favor of defendant-appellee, Sears, Roebuck & Company, Inc., and assigns the following error for our review: THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT A MISTRIAL IN LIGHT OF EXTREMELY PREJUDICIAL STATEMENTS MADE BY A POTENTIAL JUROR DURING VOIR DIRE PROCEEDINGS. For the reasons set forth below, we affirm the decision of the trial court. Crosby filed a complaint against Eugene Butcher and Sears & Roebuck & Company, Inc., defendants-appellees. Before trial, Crosby stipulated Butcher was an employee of Sears; therefore, Butcher was dismissed as a defendant, and the case proceeded to a jury trial. The jury found Sears was not negligent and returned a defense verdict. A judgment was entered in favor of Sears, and this appeal followed. The threshold question is whether as a matter of law Crosby has provided this court with an adequate record to review the assigned errors. In filing his docketing statement with this court, Crosby stated the trial court erred in failing to provide a court reporter during voir dire and failed to declare a mistrial when prejudicial statements were made by a prospective juror during voir dire. Crosby claims a prospective juror stated "he had seen a '60 Minutes' episode on T.V. in which it was reported that 'it was -4- impossible for an individual to suffer any type of injury in a motor vehicle accident under ten miles per hour.'" Crosby's sole assignment of error is premised upon this claim. The law imposes upon appellant the burden of demonstrating error in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. When an appellant fails to produce an adequate transcript for review of the assigned errors, "the [appellate] court has no choice but to presume the validity of the lower court's proceedings, and affirm." Id. at 199. See, also, Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. In order to determine whether a prospective juror's comments during voir dire were prejudicial error, this court would need a transcript of the voir dire or statement of proceedings within the meaning of App.R. 9(C) or 9(D). North Olmsted v. Puzzitiello (Aug. 18, 1994), Cuyahoga App. No. 66108, unreported (trial court presumed voir dire conducted properly where no transcript available and appellant failed to produce a statement of proceedings in compliance with App.R. 9). See, also, Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59. "***[W]here a complete verbatim transcript is unavailable, appellants have the option of providing the court with a narrative of the proceedings pursuant to App.R. 9(C), or an agreed statement of the proceedings pursuant to App.R. 9(D)." Gaines & Stern Co., L.P.A. v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. (1990), 70 Ohio App.3d 643 at 646. In this case, Crosby filed an appeal under App.R. 9(A), which informs this court that neither a transcript nor an App.9(C) -5- statement is necessary to resolve the issues on appeal. However, his docketing statement and assignment of errors indicate the opposite is true. They indicate the issue for appeal is a question regarding the jury selection process, which requires a transcript or a statement. Additionally, Crosby seeks to present this information by way of his brief. However, information in the brief that is not a part of the record is insufficient to achieve this goal. See Middleton v. Allen (1989), 63 Ohio App.3d 443. Since no court reporter was present during the voir dire of the jury venire, Crosby had a duty to make a good faith effort to produce a statement of proceedings under App.R. 9(C) or 9(D). See, also, Gaines at 646-647. The record does not demonstrate Crosby made any effort to produce a statement of proceedings. Absent a transcript or a statement of proceedings from the voir dire of the jury venire, this court is unable to determine whether a prospective juror's comments were prejudicial. See Puzzitiello, supra. Therefore, this court must presume the jury selection process was conducted properly and without prejudicial error. Id. Because this court has an inadequate record to review the assigned error, the judgment of the trial court must be affirmed. Judgment affirmed. -6- It is ordered that Appellees recover of Appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. LEO M. SPELLACY, PRESIDING JUDGE PATRICIA ANN BLACKMON, JUDGE JOSEPH NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .