Pennell v. Dewan4/11/2005
order, I have no objection.
{ } "MR. DELAHUNTY: No objection.
{ } "THE COURT: Okay. Fine.
{ } "It appears we do have a jury of eight, with two alternates." Tr. at 96.
{ } Secondly, the Ohio Supreme Court has noted that "error in the denial of a challenge of a juror for cause cannot be grounds for reversal when the defendant did not exhaust his peremptory challenges." State v. Getsy (1998), 84 Ohio St.3d 180, 191, 702 N.E.2d 866, citing State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568, 572. The validity of the Getsy rule has also been recognized in a civil case. See McGarry v. Horlacher, 149 Ohio App.3d 33, 39, 2002-Ohio-3161, 24. In the case sub judice, to the extent that appellants challenge the court's "challenge for cause" procedures, appellants' decision at trial not to utilize their remaining peremptory challenges is grounds for waiver on appeal.
{ } Finally, in order to succeed on a claim of juror-selection error, appellants must show that their substantial rights were affected, rather than merely creating speculation of prejudice. See, e.g., State v. Wilhelm, Knox App. Nos. 03-CA-25, 03-CA-26, 17, citing United States v. Delgado (U.S.C.A. 6, 2003), 350 F.3d 520. Upon review of the record, we find no demonstration of actual prejudice. Indeed, as appellees note, the trial court in this matter took the additional step of allowing appellants to revisit one of their unused peremptory challenges in order to remove Juror 35, whom appellants perceived as biased against their medical malpractice claim. See Tr. at 95.
{ } Accordingly, we find no basis for reversal in this matter as an abuse of discretion in the selection of the jury. Appellants' sole Assignment of Error is overruled.
Dewan Cross-Appeal
I.
{ } In their sole Assignment of Error on cross-appeal, appellees contend appellants' appeal should be dismissed as untimely.
{ } App.R. 4 requires a party to file the notice of appeal within thirty days of the later of the entry of the judgment or order appealed from, or, of the service of the notice of judgment in a civil case if service is not made within a three (3) day period provided in Civ.R. 58(B).
{ } However, based on our holding in regard to appellants' direct appeal, we need not reach the merits of the cross-appeal. The Supreme Court of Ohio has ruled: "Where the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in the brief thereof, App.R. 12(B) requires the appellate court to refrain from consideration of errors assigned and argued in the brief of appellee on cross-appeal which, given the disposition of the case by the appellate court, are not prejudicial to the appellee. * * * " Pang v. Minch (1990), 53 Ohio St.3d 186, 191, 559 N.E.2d 1313, paragraph eight of the syllabus.
{ } Accordingly, appellee's sole Assignment of Error on cross-appeal is overruled on grounds of mootness.
{ } For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J., Boggins, P. J., and Farmer, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs to be divided equally between Appellant David Pennell and Appellee Dr. Dewan.
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