 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
DRUG OFFENSES: CONSTRUCTIVE POSSESSION: MOTEL ROOM. State v. Jose Marte, No. 71311 (8th Dist. Ct. Apps., Cuyahoga Co., 11-6-97). A drug strike force assigned to surveillance at the Riverside Estates Housing Project in Cleveland, saw Joe Thompson sell drugs. Thompson, two Hispanic men, and a blond woman then walked toward a parking lot near Franklin Avenue. Another officer saw a car sitting in the parking lot. Inside were a man and a blonde woman. The officers asked the two to alight from the car. Jose Mateo, who had been standing across the parking lot, approached and told the officer it was his car. The woman was his wife, Sally Mateo. The other man, who carried identification for three different persons named "Jose," proved ultimately to be Jose Marte. He carried a room card for a Budgetel Inn. After talking to Mr. and Mrs. Mateo, officers arrested Marte. Having obtained consent to search the motel room, (the opinion fails to say from whom officers obtained consent), officers found over 135 grams of crack cocaine, a pager, and $2500 in cash. The grand jury charged Marte with possession of greater than three times the bulk amount of crack cocaine and possession of criminal tools. His motion to suppress evidence having been overruled, the defendant was convicted and he appealed. The defendant argued that there was insufficient evidence to show possession of the drugs. He claimed that the only evidence of possession was the key card found on his person and his fingerprint found on the coffee machine in the room. The court affirmed the conviction, saying the following: "Possession of controlled substances may be actual or constructive. State v. Mann (1993), 93 Ohio App.3d 301, 308; State v. Haynes (1971), 25 Ohio St.2d 264. To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion or control over the contraband." The court found the evidence sufficient to prove constructive possession. DOUBLE JEOPARDY: PLEA TO DISORDERLY CONDUCT NO BAR TO TRIAL FOR ASSAULT ON A POLICE OFFICER. State v. France, No. 72678 (8th Dist. Ct. Apps., Cuyahoga Co., 12-4-97). The state appealed from the trial court's granting Evette France=s motion to dismiss. Evette France entered a guilty plea in municipal court to aggravated disorderly conduct, under Cleveland Municipal Ordinance 605.03(A)(1). She was then indicted on two counts of assault on a police officer, R.C. 2903.13, based on the same conduct. The trial court granted her motion to dismiss, finding that prosecution for assault on a police officer would violate the double jeopardy clause of the United States Constitution. The opinion reports neither the facts of Ms. France's confrontation with the police officer nor the trial court's reasons for granting the motion. The state appealed, arguing that the two offenses were different because each offense contained an element lacking in the other offense. The Cuyahoga County Court of Appeals reversed. Citing State v. Lovejoy (1997), 79 Ohio St.3d 440 and United States v. Dixon (1993), 509 U.S. 688 [in which the United States Supreme Court rejected the "same conduct" test and overruled Grady v. Corbin (1990) 495 U.S. 508], the Cuyahoga court essentially agreed with the prosecution. However, the court actually reversed the case because the record did not include the municipal court charge or the defendant's plea. As the record failed to support the trial court's ruling, that ruling was clearly erroneous. The court remanded the case for proceedings consistent with the opinion. BRIBERY: "PUBLIC SERVANT" DEFINED. State v. Cooper, No. 72655 (8th Dist. Ct. Apps., Cuyahoga Co., 11-26-97). Anthony Cooper was an employee of a private company, Envirotest Systems Inc., which contracted with the State of Ohio to conduct motor vehicle emission testing. An investigative reporter from a local television station arranged to have a car tested that had been designed to fail the test. The reporter paid Cooper $20.00 to issue a compliance certificate, despite the car's having failed the test. The newspaper videotaped the encounter and turned the tape over to law enforcement officers. The Cuyahoga County Grand Jury indicted Cooper for bribery, R.C. 2921.02 and tampering with records, R.C. 2913.42. Cooper filed a motion to dismiss, claiming he was not a public servant. His motion having been overruled, he entered a no contest plea to bribery and the state requested a nolle prosequi on the tampering charge. Without even discussing whether an issue of sufficiency of the evidence is preserved by a no-contest plea, the court affirmed the conviction. The definition of "public servant" appears in R.C. 2921.01(B) as follows:
'public servant' means any of the following: Appellant argued he was not a state agent because he worked for Envirotest and, therefore, the state had no right to control his actions. In a 2-1 opinion, the court affirmed the conviction with little discussion. The dissent accepted the appellant's argument. POST-CONVICTION PETITION: DEATH PENALTY; TRIAL COURT'S ENTRY; DOCUMENTATION. State v. Frazier, No. 71746 (8th Dist. Ct. App., Cuyahoga Co., 12-11-97). Richard Frazier murdered his fifteen-year-old step-daughter, Tiffany, to prevent her from testifying against him on charges that he had raped her. He was sentenced to death on August 29, 1991. Appellant filed a postconviction petition on July 31, 1996, which the trial court dismissed on November 26, 1996. Appellant then filed a Civ.R. 60(B) motion, attaching affidavits from his lawyers to the effect that the "court did not have the opportunity to review the 14 volume transcript." Appellant also attached the standard affidavit from a psychologist averring that appellant "might" have brain damage. The trial court denied the 60(B) motion. On appeal, appellant argued that the trial court had failed to review the transcript because the court's Findings of Facts and Conclusions of Law failed to say that the trial court had reviewed the transcript. Citing State v. Lawson (1995), 103 Ohio App.3d 307, the court held that nothing in R.C. 2953.21 requires the court to recite each document it has considered. The court also held that the attorneys' affidavits lack evidentiary value as they are based on hearsay. The appellate court affirmed the trial court's order. RESISTING ARREST: FLEEING WHEN ORDERED TO STOP IS NOT RESISTING ARREST. State v. Raines, No. C-970014 (1st Dist. Ct. Apps., Hamilton Co., 12-12-97). A police officer on routine bicycle patrol saw what he believed to be a drug sale between George Raines and another man. The officer asked Raines, from a distance, to talk to him. Raines ran. The officer told him he he was under arrest but Raines kept running. Raines ran into an apartment building, knocked on a door at random, and pushed (or "conned") his way inside. The officer followed. Raines had no drugs. However, he was charged with resisting arrest and aggravated burglary (trespassing to resist arrest). The court held that fleeing to avoid arrest, before an officer is in control of the suspect, is not resisting arrest. Therefore, the court found, the defendant was not guilty of aggravated burglary, but was guilty of burglary under R.C. 2911.12(A)(4). The court in a 2-1 opinion modified the conviction and remanded. |
