Ohio Criminal Appeals Blog

The case is State of Ohio v. Justin Baker.

Baker was indicted on three counts of trafficking in marijuana, two counts of possession of marijuana, two counts of cultivation of marijuana, two counts of possession of criminal tools, and one count of engaging in a pattern of corrupt activity. Following a bench trial, Baker was found guilty on all counts and sentenced to eight years imprisonment.

The court reversed the conviction. The court found “that Warren County was not the proper venue to bring charges against Baker, as he did not cultivate/traffic/possess marijuana there, nor did he possess criminal tools or engage in a pattern of corrupt activity in Warren County.”

The court addressed that while the:

[D]ecision…results in a distasteful outcome…[a]s an appellate court

we are bound to apply the rule of law and reach a decision based upon

constitutional and statutory precepts, rather than orchestrate a futile

attempt to make the facts fit legal standards in an effort to reach

conclusion that may be just, but nevertheless, contrary to law.

The court also examined the relationships between Baker and four other individuals involved in the trafficking and cultivation to determine if the RICO statute applied. The court explained that “when determining whether a group of people are associated-in-fact, a court will look to whether the group is a ‘continuing unit that functions with a common purpose.’” 2012-Ohio-887 at ¶ 10, quoting Boyle v. United States, 556 U.S. 938, 939, 129 S.Ct 2237 (2009). In this case, the court found that Baker and his associates “functioned as separate parts to form a whole, with a shared, common purpose…Thus, there was no association-in-fact as contemplated by Ohio’s organized crime statutes.”

The Ohio Supreme Court has held that the statements by state employees, who answered questions by the Ohio Inspector General after receiving a warning that they could be fired for failing to do so, could not be prosecuted on the basis of those statements.

The case is State v. Graham, Slip Opinion No. 2013-Ohio-2114.]

The case involved five employees of the Ohio Department of Natural Resources (“ODNR”).  A Brown County DOW wildlife officer had a South Carolina wildlife officer, in obtaining an Ohio-resident hunting license, saving the out of state officer $106 on the license fee.  The ODNR employees conducted an administrative investigation and issued the officer a reprimand.

The Ohio Inspector General (“OIG”) began an investigation.  The OIG investigator interviewed the ODNR employees.  The OIG investigators did not tell the ODNR employees that they had the right to counsel.   The OIG investigator focused on whether the wildlife officer had committed a criminal act that should have been reported to law enforcement.

The OIG concluded that the ODNR employees had improperly failed to report criminal conduct to the appropriate authorities.  The Brown County Prosecutor, relying on the OIG investigation, indicted the ODNR employees on felony obstructing justice charges.

The ODNR employees sought to dismiss the charges on the grounds that the statements to the OIG were coerced by threat of job loss and were therefore inadmissible under Garrity.

The Ohio Supreme Court agreed.

Ohio law requires state employees to cooperate with an OIG investigation.  In addition, the ODNR employees received an “ODNR Notice of Investigatory

Interview” warning that  provided that their failure to answer the OIG questions truthfully “may lead to disciplinary action up to and including termination.”

State employees retain their rights under the Fifth Amendment. In Garrity, the United States Supreme Court held that the constitutional protection “against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” 385 U.S. at 500.  The Ohio Supreme Court observed that Garrity rests on “reconciling the recognized policies behind the privilege against self-incrimination and the government’s need to obtain information.”

The general rule is that that the state may compel a public employee’s cooperation in a job-related investigation, however, any incriminating answers from the employee obtained during the investigation cannot be used against the employee in criminal proceedings.

In this case, Garrity  would be applicable if  (1) the ODNR employees believed that their statements were compelled on threat of job loss and (2) this belief  was objectively reasonable.   The Supreme Court concluded tat Garrity was applicable because

the threat of discharge contained in the notice was sufficient proof that they subjectively believed they could be fired for refusing to cooperate with [the OIG] Nichols. The threat also establishes that their belief was objectively reasonable, as it represented some demonstrable state coercion above the general directive to cooperate. Because [the ODNR employees] spoke to [the OIG] after being expressly warned by ODNR that their failure to do so would subject them to disciplinary action up to and including termination, we conclude that their statements were compelled under Garrity. 

The state attempted to escape the conclusion by suggesting that the OIG is “a toothless agency with little or no coercive powers.”  The Ohio Supreme Court rejected this argument.  The court concluded that the OIG has substantial powers to obtain information and report alleged wrongdoing.

The Supreme Court has held that “[a]fter a judgment entry grants a decree of foreclosure and order of sale, the foreclosure action cannot be dismissed pursuant to Civ.R. 41(A)(1)(a), because that rule pertains only to the voluntary dismissal of a pending case.”

The case is Countrywide Home Loans Servicing v. Nichpor.

In 2009, Countrywide Home Loans Servicing filed a notice of foreclosure against two lenders, and the trial court ruled in favor of mortgage firm a few months later. In 2010, a sheriff’s sale occurred and a third party purchased the property. Soon after the sale, the mortgage firm filed a notice of voluntary dismissal, which the trial court ruled in favor of. Upon the lenders’ appeal, the Sixth District Court of Appeals initially affirmed the trial court’s decision, but soon after found issue with its ruling and decided when a judgment of foreclosure has been issued, it can be entirely dissolved prior to the confirmation of the sale with a filing of a voluntary dismissal under Civ.R. 41(A).

The court interpreted Civ.R. 41(A) as the right a plaintiff has to dismiss all claims asserted by that plaintiff against a defendant through filing a notice of dismissal at any time before the start of a trial. The court notes that Civ.R. 41(A) is only in effect when a trial is pending.

Additionally, the court holds that default judgment is the equivalent of any other judgment, which outlines the rights of those involved.

The court draws no distinction between a final judgment in a foreclosure case and a final judgment in a case of any other subject matter. In writing the opinion, Justice O’Neill relied upon Triple F Invests. v. Pacific Fin. Serv., Inc in which the Eleventh Court of Appeals found a foreclosure is composed of two separate proceedings and that following an order of sale and decree of foreclosure, the debtor may appeal, as it is a final order.

In this case, the Sixth District Court of Appeals found that the lender could dismiss the order of foreclosure before the confirmation of a sale; the Supreme Court holds instead “a lender the right to dismiss an action after a trial court has issued what it has indicated was a final judgment.” It undermines the fact that “judicial sales have a certain degree of finality.”

The Supreme Court of Ohio has held that a public records request is equivalent to a demand for discovery in criminal proceedings.

The case is State v. Athon.

In 2010, the Defendant was arrested by the Ohio State Highway Patrol after he was charged with operating a vehicle while under the influence of alcohol, speeding, and failing to reinstate his driver’s license.  The Defendant was represented by Steven Adams and plead not guilty. Adams asked another attorney to obtain the defendant’s arrest evidence by making a public records request, as opposed to participating a discovery pursuant of Crim.R. 16.

At trial, in March of 2011, the state argued that the Defendant was required to provide reciprocal discovery, suggesting that the attorney’s public records request acted as a demand for discovery. Under Criminal Rule 16, if a defendant requests discovery, this triggers a reciprocal duty of disclosure.

The Supreme Court of Ohio addressed two issues: “whether an accused in a criminal case may request public records to obtain information that could be demanded from the state during discovery, and if so, whether such a request triggers a reciprocal duty of disclosure to the state.”

The court held that a request for public records could be considered a demand for discovery from the state, and does in fact carry with it a reciprocal duty of disclosure from Crim.R. 16: “When an accused directly or indirectly makes a public records request for information that could be obtained from the prosecutor through discovery, the request is the equivalent of a demand for discovery and triggers a duty to provide reciprocal discovery as contemplated by Crim.R. 16.”

The court cited cases involving the Freedom of Information Act (FOIA) to support this conclusion. In one case, including United States v. Murdock, 548 F.2d 599, 602 (5th Cir.1977), a federal appeals court said: “Although information obtained through the FOIA may be useful in a criminal trial, we find that the FOIA was not intended as a device to delay ongoing litigation or to enlarge the scope of discovery beyond that already provided by the Federal Rules of Criminal Procedure”.

Justices Pfeifer, Kennedy, and O’Neill dissented.

The Supreme Court of Ohio has held it has exclusive jurisdiction in cases in which the death penalty is imposed. Additionally, the court ordered trial courts to apply the definition of a ‘definitive DNA test’ before dismissing a second application for postconviction DNA testing.

The case is State v. Noling, 2013-Ohio-1764

In 1990, the defendant, Tyrone Noling, was found guilty of aggravated murder of a couple in Portage County, Ohio. Noling was sentenced to death on two counts. The Supreme Court of Ohio affirmed the convictions.

Noling submitted his second application for postconviction DNA testing in December of 2010, arguing that advances in DNA technology could prove that new pieces of evidence “would be ‘outcome determinative,’ because it would identify the true killer.”  The trial court found that as they had previously rejected an application for DNA testing, court would not accept or consider second applications.

The Supreme Court of Ohio finds that there are two questions raised in Noling. One: can a court of appeals have jurisdiction from a trial court’s denial of postconviction DNA testing in a case where the death penalty was imposed? Two: does Ohio law bar additional applications for post-conviction DNA testing when previous applications were thrown out due to then-DNA testing statutes?

The court holds that the Ohio Constitution give the Supreme Court exclusive appellate jurisdiction for direct review of judgments in which the sentence of death is imposed. The court held that this specifically excludes the court of appeals from the direct review of those same judgments.

Addressing the second question, the court points to R.C. 2953.73(E)(1).

The court directed trial courts to apply DNA testing applications the definition of “definitive DNA testing” in R.C. 2953.71 (U):

 “Definitive DNA test” means a DNA test that clearly

establishes that biological material from the perpetrator of the

crime was recovered from the crime scene and also clearly

establishes whether or not the biological material is that of the

eligible offender. A prior DNA test is not definitive if the eligible

offender proves by a preponderance of the evidence that because

of advances in DNA technology there is a possibility of discovering

new biological material from the perpetrator that the prior DNA

test may have failed to discover.

 The court, relying on State v. Prade,126 Ohio St.3d 27, 2010-Ohio-1842, said: “[n]ew DNA testing methods are now able to provide new information that was not able to be detected at the time of defendant’s trial. We hold that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.”

Justices O’Donnell and French dissented, arguing that R.C. 2953.73(E) is unconstitutional because it “purports to enlarge the constitutionally defined jurisdiction of [the supreme] court and because the legislature lacks authority to amend the constitution.” Additionally, the dissenters argues that it is the responsibility of the appellate courts to review errors, whereas it is the Supreme Court’s responsibility to review propositions of the law.

On May 1, 2013, the Ohio Supreme Court clarified lesser-included offenses for felonious assault. The case is State v. Deanda, Slip Opinion No. 2013-Ohio-1722.

In 2009, Defendant, Deanda, got into an altercation with David Swartz in front of Deanda’s residence.  Deanda attacked Swartz with a stick, which Swartz soon took and attacked Deanda, hitting him. Deanda then reached for a knife and proceeded to stab Swartz seven times, though none were life-threatening. Throughout the altercation, Deanda verbally threatened to kill Swartz.

The Defendant was charged with one count of attempted murder. At trial, the state requested an instruction on felonious assault, while Deanda asked for two instructions on the lesser included offenses, one for assault and the other for aggravated assault. The trial court found “that it would provide instructions on all lesser included offenses requested by both parties.” The jury found Deanda not guilty of attempted murder but guilty of felonious assault.

The state then appealed the trial court’s ruling to the Third District Court of Appeals. The Appeals Court held that felonious assault could not be considered a lesser included offense of attempted murder.

The Ohio Supreme Court held that felonious assault through causing physical harm is a lesser included offense of attempted murder. The court relied on State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987), which provides three requirements of a lesser included offense. The requirements altered in State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988) are:

An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.

While aggravated assault could not be considered a lesser included offense of felonious assault, the court recognized that it could be an inferior- degree offense.

The General Assembly defined the relationship between felonious assault and attempted murder in their Legislative Service Commission 1973 comments to R.C. 2903.11. “In particular, in explaining the newly created offense of felonious assault, the Legislative Service Commission staff stated that ‘the offense of felonious assault complements the section on murder’ and that felonious assault ‘is a lesser included offense to attempted murder.’”

The court explained further that “[t]he offense of murder necessarily includes the commission of felonious assault through causing serious physical harm, because purposely causing death necessarily involves knowingly causing serious physical harm.” Finally, it arrives at the conclusion that one “[c]annot intend to kill without also intending to cause physical harm.”

The case is State v. Spivey.

In May 2011, the Defendant allegedly abused his girlfriend while driving from Morral, Ohio to the Killdeer Plains Wilderness Area. The Grand Jury indicted the Defendant on the following: “felonious assault…a felony of the second degree; abduction…a felony of the third degree; domestic violence…a misdemeanor of the first degree; kidnapping…a felony of the first degree; and attempted murder…a felony of the first degree.”

According to the appellate court, the most serious of the possible errors is the numerous pieces of evidence to the disadvantage of the Defendant. For example, the court points out that in order for a “plain error” to have taken place, there must have been an “obvious” defect in the trial proceedings, and that without these errors, the trial would have been decided differently. The Defendant points to several pieces of evidence, and argues that if each was not given as evidence, the trial outcome would have been different; the court examines each piece and argues the opposite, therefore affirming the trial court’s decision.

The Defendant further argued that guilty verdict for both the felonious assault and kidnapping charges was against the “manifest weight of the evidence.” The court references State v. Thompkins to suggest the well-rounded review of the all trial aspects:

When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered, 78 Ohio St.3d 380, 387 (1997).

Applying this principle by examining all trial court factors, the appellate court finds that there is heavy evidence for both the felonious assault and kidnapping charges.

After basing their decision on the weight of the law versus the strong evidence against the Defendant, the appellate court affirms the trial court’s ruling.

Read More: Ohio Third Appellate District Court Affirms Marion County Court’s Ruling

http://www.sconet.state.oh.us/rod/docs/pdf/3/2013/2013-ohio-851.pdf

The case is FLORIDA, PETITIONER v. JOELIS JARDINES. 

In 2006, the Miami-Dade Police Department and the Drug Enforcement Administration sent a surveillance team to the home of Joelis Jardines after receiving a tip that marijuana was being grown in the home. Part of the surveillance team included a detective trained in canine handling and his drug-sniffing dog, Franky. Upon entering the front porch of the Jardines’ home, Franky indicated that he had detected a narcotics odor on the other side of the front door, giving the detectives a positive-alert for narcotics. At this point, the detectives obtained a warrant to search the home and later arrested Jardine after the search found marijuana plants on the property. Jardine was charged with trafficking in cannabis.

The trial court suppressed the evidence because it found the canine investigation was unreasonable. The Florida Third District Court of Appeal reversed the trial court’s decision. When the case was before the Florida Supreme Court, the court affirmed the trial court decision.  The US Supreme Court supported the Florida Supreme Court and ruled to suppress the evidence discovered in the canine investigation.

The Court agreed that the evidence was obtained in violation of the Fourth Amendment. The court reasoned that the front porch, on which the detectives and Franky were standing, is an extension of the home, which is protected under the Fourth Amendment. “This area around the home is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened.’” California v. Ciraolo, 476 U. S. 207, 213 (1986).

In addition, the majority found that there was no invitation (neither implicit or explicit) to open the door and come into the home; instead the detectives allowed Franky to investigate without an invitation.

Accordingly, the Supreme Court held that police must obtain a warrant to search a property with the use of trained dogs.

Writing a concurring opinion, suggested that the surveillance the Detectives and Franky are engaged in constitutes a ‘search’ because they are using instruments that are unavailable to the public and therefore would be unreasonable without a warrant.

Writing a dissenting opinion, Justice Alito suggested that no search within the Fourth Amendment took place. Justice Alito takes the evidence that the officers did not trespass, as they were only in the yard for a few minutes, and therefore “did not violate [Jardine’s] reasonable expectations of privacy.”