COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 80434 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : OLLIE SMITH, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 8, 2002 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-401226 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Brendan Sheehan, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Robert L. Tobik, Esq. Cuyahoga County Public Defender BY: Kathy L. Moore, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, P.J.: I. Defendant-Appellant Ollie Smith was indicted on January 23, 2001 for two counts, receiving stolen property (a violation of R.C. -2- 2913.51) and theft of property between $500 and $1,500 (a violation of R.C. 2913.02). At trial, the state brought forth five witnesses, including three police officers. Officer Chetnik testified that he responded to a 9-1-1 call about a stolen car that contained some personal property of the car's owner. Officer Lipscomb testified that he, while off-duty at the time, received information regarding the stolen car. Later that evening, Lipscomb happened to see the stolen car, followed it and eventually made the arrest of Smith. During the course of the trial, after counsel had questioned each witness, the trial court would ask the jury if they had any questions. The jury asked five questions of Lipscomb and one question of an Officer Mauer. Smith was found guilty of both counts and brings one assignment of error for our review. II. ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT PERMITTED THE JURORS TO QUESTION THE WITNESSES. Smith argues that the disruptive effect of juror questioning upon the neutrality of the jury and upon the adversary process itself denies a criminal defendant due process, the right to a trial by jury, and, by distorting the adversary process, the right to counsel. Further, Smith argues that it is per se reversible error for a trial court to allow jurors to question witnesses. This issue was reached recently by this court under almost identical circumstances. State v. Belfoure (June 13, 2002), -3- Cuyahoga App. No. 80159. In Belfoure and in the trial below, the trial courts established similar procedures in allowing the jurors to ask questions of the witnesses. Here, jurors who had questions would submit them in writing to the court reporter who would hand them over to the judge. The judge and counsel would then discuss the questions at sidebar to see if they would pass legal muster. If the questions were legally acceptable, the judge would read the questions to the witness. The rule in this district, unless and until the Supreme Court holds differently1, is that the right of a juror to question a witness during trial is within the sound discretion of the trial court. Belfoure at q13, quoting State v. Sheppard (1955), 100 Ohio App. 345, 128 N.E.2d 471, paragraph five of the syllabus. III. We therefore hold that the lower court acted within its discretion in allowing jurors to question the witnesses. Smith's assignment of error is not well taken. Judgment affirmed. 1 As this court recognized in Belfoure, a conflict exists among the districts in Ohio and the issue is currently pending before the Ohio Supreme Court. Belfoure at q12, citing State v. Fisher (2002), 94 Ohio St.3d 1484, 763 N.E.2d 1183. -4- 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. MICHAEL J. CORRIGAN PRESIDING JUDGE ANN DYKE, J., and JAMES J. SWEENEY, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .