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Unusual Criticism From Prosecutor After Appeals Court Dismisses Another Drug Case for Improper Venue

An Ohio Appeals Court dismissed drug trafficking case for improper venue, promoting unusual public criticism from an elected prosecutor.

The court had previously dismissed a related case for a similar reason.

The case is State v. Sparks, 2014-Ohio-1130.

In 2011, the Warren County Drug Task Force began investigating an alleged marijuana trafficking ring.  Undercover officers purchased marijuana on three different occasions in the Mason, Warren County, Ohio area.

The Task Force determined that the dealer had purchased his marijuana from a married couple in Hamilton Countyand from someone who grew marijuana in Butler and Hamilton Counties.  The Defendant grew marijuana for one of the suppliers at a house in Hamilton County. In exchange for growing and processing marijuana, the Defendant was allowed to stay in the house rent-free, and received a few hundred dollars every month.

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Court of Appeals Vacates Rape Sentence. Firm Represented Defendant.

The Twelfth District Court of Appeals has vacated a twenty year rape sentence imposed on an elderly man.

Joshua Adam Engel represented the defendant in this appeal.

The case is State v. Stamper.

The Defendant pled guilty to three counts of rape in violation of R.C. 2907.02(A)(1)(c) (first-degree felonies).

In exchange for appellant’s guilty plea, the gross sexual imposition charge was merged, and appellant’s sentence upon conviction was to be “capped at 10 years per count, no life sentence.” At the time of the plea, the defendant was 74 years old.

Following a sentencing hearing, the trial court sentenced the defendant to ten years in prison on each count of rape, and ordered that two of the sentences be served consecutively, for an aggregate prison term of 20 years.

The Court of Appeals concluded that the trial court did not err in imposing maximum prison terms.  However, the found that the consecutive nature of the sentences was improperly imposed because the trial court did not make the required statutory findings on the record at sentencing.

The cases was sent back to the Butler County Common Pleas Court for a new sentencing hearing.


ICYMI: The Ohio Constitution Provides Greater Protections to Criminal Defendants than the United States Constitution

Important read on Cincicrime Blog:  Ohio Constitution Provides Greater Protections to Criminal Defendants than the United States Constitution.




Ohio Supreme Court’s Tough Dissents

The Ohio Supreme Court has seen an apparent increase in harsh dissents from the Justices.

The Columbus Dispatch has noticed the trend.

The sharp words come from dissenting opinions of justices who disagree with the ruling arrived at by the majority on the seven-member court.

Most of these critiques start out pretty much the same: “I respectfully dissent …” But the dissenting opinions have included especially pointed language in several recent high-profile rulings.

Perhaps Justice Pfeiffer summed up the change:  “If I offend colleagues from time to time, you’re never going to hear me say I’m sorry. It goes with the territory.”

The cases highlighted include Pauley v. Circleville, Slip Opinion No. 2013-Ohio-4541.  That case involved injuries sustained by a chile while sledding in a city park.  Justice O’Neill dissented by suggesting that the city had created a “perfect killing field” by dumping debris in the park.

Another case was Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000.  That case involved the firing of a teacher in a dispute about religious teaching in school.  Justice Pfeiffer in his dissent was sarcastically critical not only of the majority opinion, but also the plaintiffs and the lawyers.

My view: strong dissents have a long tradition in the law.  And they help non-lawyers understand the stakes in important cases that often turn on difficult and technical points of law.




Ohio Supreme Court Limits Use Of Child Abuse Reports to Teachers

The Ohio Supreme Court has held that when questioning a child about suspected abuse a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.  This means that statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are subject to the Confrontation Clause of the Constitution.

The case is State v. Clark,  Slip Opinion No. 2013-Ohio-4731.

The case involved the use at trial of hearsay statements that a three-and-a-half-year-old made to his preschool teacher in response to questions asked about injuries to his eye and marks on his face observed upon his arrival at a preschool day care.

The legal background turns on the Supreme Court’s interpretation of the Confrontation Clause.  The Court has held that statements made to law enforcement when the primary purposes of the questioning is to establish or prove past events potentially relevant to later criminal prosecution are “testimonial” and, therefore, may not be used in a trial unless the person who made the statements is available for testimony and cross-examination.

This case started when the defendant’s girlfriend’s son was dropped off at a Head Start Center in Cleveland. One of the preschool teachers observed that the child’s left eye appeared bloodshot and bloodstained. She asked him, “What happened?” The child at first said nothing but then replied, “I fell.”   Later, the child made statements that appeared to implicate the defendant.

Later, the teachers observed more injuries and reported the matter to a supervisor and then the Department of Child and Family Services.

The trial judge declared that the child was not competent to testify at a trial, but allowed the jury to hear the statements made to the instructors.  The court explained that these statements were “testimonial” because they were not designed to deal with an emergency, but were aimed at gathering information about what had occurred.

Here, the circumstances objectively indicate that the primary purpose of the questions asked of [the child] was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. His teachers reacted to manifest signs of child abuse and complied with their statutory and professional duties to report it to child-protection authorities. They did not seem to believe his story that he had fallen and instead focused on who caused the injuries. . . . .

Here, the information also led to criminal prosecution, and therefore the use of the child’s statements implicates the defendant’s constitutional rights. When teachers suspect and investigate child abuse with a primary purpose of identifying the perpetrator, any statements obtained are testimonial for purposes of the Confrontation Clause.

For this reason, the admission of the child’s statements to the teacher violated the defendant’s right to confrontation.

The Chief Justice vigorously dissented:

The majority decision creates confusion in our case law, . . . and threatens the safety of our children.”  The dissent said:

The majority reaches an illogical result, the straightforward application of which dictates that when a teacher notices that a child is hungry and asks whether the child had breakfast, the teacher is a police interrogator because the child might disclose reportable neglect. When a licensed psychologist questions a child about insomnia, the majority would conclude, the psychologist is a police interrogator because the child might disclose reportable abuse. When a dentist observes an injury in a child’s mouth and asks the child “what happened,” under the majority holding, the dentist is an agent of law enforcement for Confrontation Clause purposes. Common sense dictates that those conclusions are incorrect

. . . More troubling, the majority creates a beneficial catch-22 for pedophiles and other abusers of children. The very people who have the expertise and opportunity to recognize child abuse are now prohibited in Ohio from testifying about any out-of-court statements that a child makes about abuse or neglect when the child, for whatever reason, is unable to testify.  Child abusers often evade prosecution because the victims are unable to disclose the abuse, let alone testify.

The majority of the court referred to the dissent as a “passionate rant” and defends its decision as supporting “a basic constitutional right to all accused of crime by the Sixth Amendment of the United States Constitution.  “In this case, a three-year-old allegedly uttered a statement identifying [the defendant] but never testified in court because the judge determined him to be incompetent to testify at trial six months after he had uttered the identification.”



Ohio Supreme Court: Person who Receives a Pardon is Not Entitled to Expungement

The Ohio Supreme Court has held that Ohio law does not require the sealing of a criminal record based on a pardon.

The case is State v. Boykin 2013-Ohio-4582.

The Defendant, Montoya Boykin, was convicted six times between 1987 and 2007 for different offenses. In 2007, she received a pardon from Ohio Governor Ted Strickland.  She then sought to have the records of her convictions in the courts sealed.

The Ohio Supreme Court noted that the sealing of a criminal record, also known as expungement,is a “privilege, not a right.”  In order to obtain an expungement, the Ohio statute provides that there be  no criminal proceeding against the applicant, the expungement of the record of conviction is consistent with the public interest, and the applicant’s rehabilitation has been attained to the satisfaction of the court.

The statute does not address whether a pardon from the governor entitles the recipient to have the records of the conviction sealed. The effect of a pardon is to release the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent to the conviction.  The Ohio Supreme Court, however, rejected the argument that an expungement is necessary to remove the “disability” that results from having a criminal record. The defendant explained that “having a criminal record imposes real and lasting negative consequences such as difficulty in finding employment, in obtaining housing, and in establishing eligibility for public benefits.”  The court explained:

[A]lthough a pardon grants the recipient relief from any ongoing punishment for the offense and prevents any future legal disability based on that offense, it does not erase the past conduct. In other words, what’s done is done.

The court further explained that this means that, under the existing statute, a person who receives a pardon is not entitled to an expungement.

While a pardon releases the offender from further punishment prescribed for the offense and removes certain disabilities consequent on the conviction, there is nothing in the Constitution, the Revised Code, or our case law that requires the sealing of a criminal record based on a pardon. It is within the purview of the General Assembly to provide that automatic entitlement to sealing of a criminal record is a consequence of a pardon. But in the absence of such a provision, we hold that a gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.

This means that the General Assembly may change the law to permit an expungement in these circumstances, but until it does the defendant’s records remain unsealed.


Ohio Supreme Court: Judge Can’t Take Judicial Notice That Bud Light is Beer

The Ohio Supreme Court has reversed a conviction for selling beer to an underage person.  The court held that a trial court cannot take judicial notice of a fact that is an essential element of an offense.

The case is State v. Kareski, Slip Opinion No. 2013-Ohio-4008.]

In this case, a confidential informant and two undercover agents entered a bar where the defendant was bartending.  The informant, who was 19, approached the bar and asked the defendant for a Bud Light.  The defendant testified that he noticed that the informant did not have the stamp showing that he had provided proof of his age at the door.  He told the informant that he could not give him the beer until he showed proper age identification. The informant pretended to take a cell phone call, passed money to the defendant, and walked away from the bar without the beer.

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The Twelfth District Court of Appeals has held that RICO Charges must be Brought in the County where the Alleged Criminal Enterprise Occurred

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.”


Ohio Supreme Court Limits Use of Statements to Inspector General in Criminal Prosecutions

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.


Supreme Court of Ohio Holds that Judgment of Foreclosure Cannot be Dissolved

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.”