COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68815 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CATHLEEN JOHNSON : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-315725 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ELEANORE E. HILOW, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT J. TRIOZZI P.O. Box 19385 Cleveland, Ohio 44119 - 2 - O'DONNELL, J.: Cathleen Johnson appeals the judgment of the Common Pleas Court entered pursuant to a jury verdict finding her guilty of two counts of forgery in violation of R.C. 2913.31. The incidents leading to her arrest and conviction began on July 20, 1994 when Johnson spent the night at the home of her friend Heidi Dawes. The following morning, Dawes went to work, but left her purse behind. Johnson, then, took Dawes's driver's license and credit card and proceeded to a branch of National City Bank located at 15100 Puritas Avenue in Cleveland. At the bank, Johnson obtained a $100 cash advance on one of Dawes's credit cards. About one hour later, Johnson returned to the same bank and same teller and this time obtained a $400 cash advance on a different credit card, which also belonged to Heidi Dawes. Several weeks later, Heidi Dawes notified the bank that she noticed an error in her statement because she had not made the cash advances listed. Dawes, then, went to the bank, viewed photos taken by bank security cameras, and identified Johnson as the person making the transactions. In exchange for her cooperation in prosecuting Johnson, the bank agreed to credit Dawes with the disputed $500. Thereafter, Johnson was indicted on one count of theft and two counts of forgery and the case proceeded to trial. At trial, Johnson admitted she completed the transactions using Dawes's - 3 - credit cards, but claimed Dawes had given her permission to do so, and only later withdrew that consent. After hearing all the evidence, the jury began deliberation but subsequently notified the court it could not reach a unanimous verdict. After further instructions and additional deliberation, the jury returned a verdict finding Johnson guilty of two counts of forgery but not guilty of theft. Johnson appeals and assigns three errors for our review. The first assignment of error states: THE COURT ERRED IN NOT ALLOWING EVIDENCE AS TO DEFENDANT'S HABITS AND ROUTINE IN VIOLATION OF EVIDENCE RULE 406. Johnson contends the court should have allowed evidence showing she routinely borrowed money and credit cards from her friends and then later paid them back. The state believes the trial court properly excluded this evidence because it is not relevant. The issue before us, then, is whether the trial court should have admitted evidence of Johnson's habit or routine in this instance. We begin our analysis of this issue by examining Evid. R. 406 which provides: Evidence of the habit of a person *** is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. However, even if this evidence is relevant to show conformity with the habit on a particular occasion, conformity with the - 4 - habit must also be relevant to the determination of issues before the court. Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid. R. 401. Evidence which is not relevant is not admissible. Evid. R. 402. In this case the trial court excluded the evidence finding it not relevant. The court determined that whether or not Johnson routinely borrowed money from her other friends was not of consequence to the determination of this action because the issue before the court was whether or not Dawes had given consent. We agree that the fact Johnson borrowed money from other people does not make the determination of whether Heidi Dawes gave consent more or less probable, therefore, the trial court properly excluded the evidence, and the first assignment of error is overruled. The second assignment of error states: THE COURT ERRED IN NOT ALLOWING EVIDENCE OF DEFENDANT'S EMOTIONAL STATE UPON HEARING THE CHARGES AGAINST HER. Johnson here argues that the evidence of her emotional state is relevant to show how surprised she was when she found out Heidi Dawes claimed she had not given Johnson consent to use the credit cards, and further argues that this reaction is critical to the issue of criminal intent. - 5 - The state contends such evidence is not relevant because the witness did not testify about Johnson's immediate response after learning about the charges against her, but rather how Johnson acted when she later told the witness about the charges. The issue for our consideration is whether the trial court should have been admitted the emotional state evidence at trial. As we explained in the first assignment of error, evidence is relevant if it has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. Evid. R. 401. Evidence which is not relevant is not admissible. Evid. R. 402. In this case, defense counsel attempted to elicit the evidence in question at trial when he asked defense witness Melanie Tawney the following at T. 151: Q: Tell us about her emotional state while she was telling you about these charges against her? A: She was just devestated (sic). She was, like, in shock. Thereupon, the prosecutor objected, the court sustained the objection, and the following discussion transpired at sidebar: MR. KESHOCK: *** With regard to my questioning of Miss Melanie Tawney, at this point I asked the question as to what emotional state Miss Cathleen Johnson was exhibiting when she first told Melanie Tawney that she had been charged criminally for this. I believe her testimony is going to be that Cathleen was extremely distraught. That she saw Cathleen was upset and perhaps crying at the time. - 6 - In asking the question, I'm simply asking not what was said, but just as to her emotional state and what emotions this witness was viewing at the time Cathleen told her. *** THE COURT: I'm not understanding, Mr. Keshock, how this is relevant. It doesn't bear on the guilt or innocence. You could be guilty or innocent and still be distraught. It isn't probative of any issue. *** MR. KESHOCK: *** The probative nature of this, your Honor, is we are contending during the whole course of this trial that there was consent originally. That it was subsequent to the consent being given that Heidi Dawes withdrew that consent, apparently. I want to show the surprise in Cathleen Johnson's mind when she was made aware of the fact that Heidi Dawes had all of a sudden withdrew this consent to use these things. (Emphasis added.) THE COURT: Well, my ruling stands. I think the objection is to be sustained on relevancy grounds. Initially, we note that the portion of defense counsel's argument highlighted above is not proper in relation to this witness. The record reveals Melanie Tawney attempted to testify about Johnson's emotional state when Johnson told her about the charges, not when Johnson was made aware of the charges. Since Tawney was not present at the time Johnson was made aware of the charges, she was incompetent to testify on that matter because she lacked personal knowledge. Evid. R. 602. Furthermore, evidence about Johnson's emotions after being charged is not of consequence to the determination of the action. - 7 - As the trial court correctly explained at sidebar, the fact that Johnson would be upset about charges being filed against her does not bear on her guilt or innocence. Accordingly, the trial court properly excluded the evidence as irrelevant, and the second assignment of error is overruled. The third assignment of error states: THE COURT ERRED IN FAILING TO POLL THE JURY ABOUT ITS VERDICT. Johnson contends the court should have polled the jury because during deliberation, the jury had communicated to the court it was unable to reach a verdict, but, after further instruction, found Johnson guilty of forgery but not guilty of theft. The state urges the court is only required to poll a jury upon request of a party. The state further argues that the verdict of the jury may not be impeached absent evidence aliunde of juror misconduct. The issue for our consideration is whether or not the trial court erred in not polling the jury. The rule governing a jury poll is contained in Crim. R. 31(D) which provides: Poll of Jury. When a verdict is returned and before it is accepted the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. - 8 - This language provides for a mandatory poll upon the request of any party, but gives the trial court discretion to do so in the absence of a specific request. The rule itself impels this interpretation, because the rule does not require that a jury shall always be polled. In this case, the jury returned its verdict signed by all twelve jurors. After the trial court read the verdict, and before the court discharged the jury, the court afforded counsel an opportunity to speak. Neither party requested a jury poll and both parties told the court they had nothing further to present. At that point, the decision of whether or not to poll the jury rested within the sound discretion of the trial judge since neither party had requested a poll. Based upon this procedural history, where regularity is apparent on the record, we cannot conclude the trial court abused its discretion in failing to the poll the jury, and the third assignment of error is, therefore, overruled. Judgment Affirmed. - 9 - It is ordered that appellee recover of appellant its 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and NAHRA, 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, .