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 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.

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.”

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

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.”

The case dates back to 2009, when Smith began dating Pickins. When their ‘”rocky”’ relationship reached a breaking point in 2010, Pickins filed a petition ex parte for a protection order against Smith. Pickens showed the order to Smith and indicated that he needed to stay away from her.

The following day, Smith broke into Pickens’ residence and attempted to choke her. The Columbus Police soon arrived and arrested Smith. The protection order was formally served on Smith later the same day.  A few weeks later Smith was indicted for aggravated burglary, a misdemeanor charge of violating a protection order or consent agreement domestic violence, and resisting arrest. The matter was tried to a jury, which found Smith guilty of aggravated burglary, violating a protection order, and resisting arrest. The state argued that Smith “’recklessly”’ violated the protection order. Ohio law defines recklessness as a “’perverse disregard of a known risk’”.

The Ohio Supreme Court finds that a protection order is not criminally enforceable unless it is served on the respondent. The Court finds that all parts of R.C. 2903.214 must be met to be charged under R.C. 2919.27. In Smith’s case, he could not be convicted of violating an order because he was not served with a copy of the order.

The Court reasoned that ‘delivery’ and ‘service’ are synonymous, meaning that though Smith was issued an order, it was not served, or delivered, until after the alleged violation.

Justice Lanzinger dissented. She reasoned that “the order has independent force, even apart from service” and points to R.C. 2903.214(E)(2)(a), which states that a protection order is valid from the date it was issued.

According to media coverage the Defendant spoke to a 13 year old girl while she was walking home from the library where he worked in 2011.  The 37-year-old Defendant allegedly asked her name so they could be “secret friends” on Facebook.

The Defendant was convicted of child enticement. R.C. 2905.05.

The court of appeals found that the statute is unconstitutionally overbroad.  A statute is unconstitutionally overbroad if it “its potential application reaches a significant amount of protected activity.”

The child enticing statute provides:

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply: (1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity. (2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.

The court noted that the statute “Undoubtedly . . . has an admirable purpose, which is to prevent child abductions or the commission of lewd acts with children.”  However, innocent and non-criminal activity could be swept in by the statute.  The court gave an example:  “parents picking up their child from school would theoretically violate R.C. 2905.05(A) merely by asking their child’s friend if he or she wanted a ride home.”

The problem with the state is that there is “no requirement that a person have ill-intent when asking the child to accompany” the person. The statute thus criminalized “very basic societal interactions.”

The court concluded that enforcement in a selective manner by police and prosecutors did not save the statute.   “Even if the statute did grant the police the discretion to determine what was illegal and what was legal, similar grants of discretion to police officers have consistently been found to be unconstitutional.”

The case is State v. Lam, 2013-Ohio-505.

The Defendant was arrested by Dayton police officers.  The officers had observed the Defendant’s brother driving a gold Intrigue; they were aware of the brother’s criminal history and also were aware that the Defendant and his brother had “possessed firearms and drugs during past contacts with the police.”

The brother had fled from police two weeks earlier in the same car and his license was suspended.  The officers decided to follow the brother rather than immediately initiate a stop for driving without a license and any other pending charges.

While following him, they observed a turn signal violation.

When the brother parked, the officers activated their emergency lights.   At that time, the brother and another individual fled on foot.   The officers pursued the brother and observed him go into a house. The court described what happened next:

The officers attempted, unsuccessfully, to kick in the door.  Although the officers could see individuals inside the house, no one responded to their commands to open the door.  The officers retrieved a battering ram from their cruiser and, using it, entered the house.  Additional backup had arrived by this time.

Upon entering the house . . . the officers heard an upstairs  toilet flushing, and another officer on the perimeter of the house radioed that he heard a person or persons moving around on the second floor of the house.  Officers conducted a sweep of the house for their safety.  They encountered [the Defendant] coming down the steps from the second floor, and two other men were found upstairs, including one who was hiding.

During their sweep of the house,  officers observed crack cocaine in a bedroom, marijuana under a bed and on a stairwell, and heroin in the kitchen, all in plain view.  While detaining the men found in the house, the officers called for a drug unit and obtained a search warrant for the house.

The Defendant was arrested and drugs, including heroin tied to the drawstring of the shorts he was wearing under his jeans, were found.

The Defendant challenged the ability of the police to enter into the house.  He suggested that entry into a house is not permitted for a misdemeanor traffic violation, and that no exigent circumstances justified the police officers’ entry into his home.

The law is that exigent circumstances can justify a warrantless search when an emergency situation which arises when a person in the home is in need of ‘immediate aid’ or there is a life-threatening situation, or ‘hot pursuit.’

In this  case, the State did not assert that there had been a life-threatening situation, a potential for the destruction of evidence, or any other “emergency situation.”  Instead, the state argued that the entry was justified because the officers were in hot pursuit of the Defendant’s brother.

The Defendant suggested that this was improper because the officers had only witnessed minor traffic violations.  The court rejected this argument.  Relying on a 1976 Supreme Court decision, United States v. Santana, 427 U.S. 38, the court concluded that a suspect could not defeat an arrest by escaping to a private place.   The court found that the police were lawfully inside the Defendant’s house when they observed the drugs which formed the basis for the search warrant.

The court expressed some “reservations about permitting police officers to chase a suspect who is known to have committed only a minor traffic violation and to forcibly enter into his house, in the absence of exigent circumstances.”  The curt suggested that although precedent bound it to rule against the defendant, “This may be the unusual situation where legal reasoning has plunged off the slippery slope or where the exceptions have swallowed the rule.”

The case is State v. Gilbert, 2013-Ohio-238.

The Defendant was convicted of murder and related weapons offenses in 2011.

In May 2010, the Defendant entering into a detailed plea agreement with the prosecutor.  The Defendant agreed to enter pleas of guilty to reduced charges in exchange for an agreement to testify truthfully in a case against his father.

A year later, the prosecutor moved to vacate the plea and sentence.  The prosecutor allged that the Defendant had not provided truthful testimony.  The trial court vacated the original sentence and imposed a new sentence of 18 years to life in prison.

The court of appeals vacated the new sentence.  The court noted that “Generally, Ohio trial courts lack the authority to reconsider their own valid final judgments in criminal cases.”  The few exceptions include clerical errors and to decide motions to withdraw a plea or consider newly discovered evidence. There are also limited excpetions for habeas corpus and post-conviction relief proceedings.

None of the exceptions applied in this case.

The state argued “that the facts implicate the distinction between a trial court’s lack of subject-matter jurisdiction and a trial court’s improper exercise of jurisdiction or authority.”  In other words, “the parties were properly before the court on the state’s motion to vacate the pleas because the common pleas court has subject matter jurisdiction over felony cases.”

The court rejected this jurisdictional argument as “unpersuasive.”  The court also rejecteda state argument that the trial court retains jurisdiction to continue proceedings against a defendant in the event of a breach of a breached plea agreement.  The court held that a plea agreement can not give the trial court the authority to reconsider its final judgment.

Judge Fisher wrote to note that “Given the current state of the law, [he was] compelled to join the lead opinion in this case.”  However, the judge was concerned that  this “case exposes an obvious deficiency in the power of Ohio’s courts to enforce plea agreements, a central element of our criminal justice system. “

Judge Dinkelacker dissented.  The judge noted that the defendant’s “scheme of dishonesty and disrespect for the justice system should not be rewarded.”  The judge was also concerned that “To do otherwise undermines the entire plea arrangement system. “

More details on the case and the controversy can be found in the Cincinnati Enquirer.

The case is State v. Klein, 2013-Ohio-228.

The defendants were convicted of involuntary manslaughter and other crimes.

The facts occurred in 2011. Richard Klein and his wife, codefendant Kasey Klein, commenced a tent camping trip at Ellis Dam with Kasey’s sons, A.C. (age three) and A.J. (age two).

Emergency management officials were alerted that the boys were missing.  Rescue personnel eventually found A.C.’s body in the Muskingum River. The coroner subsequently determined that A.C.’s death was caused by accidental drowning. A.J. has never been found.

According to Kasey’s trial testimony, the boys were permitted to stay up until about 9:00 PM. The next morning, the couple noticed that the boys were missing and rescue officials were called to the scene.

One of the major issues was whether the couple should have been tried together or separately.  Normally, trials of co-defendants may be held together.  This is done to save judicial and prosecutorial resources.  However, in this case the appeals court concluded that the joint trial prejudiced the husband.  A new trial was necessary because of an insinuation in the testimony of the wife that that the husband had murdered the two victims.