 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: STOP AND FRISK; UNPROVOKED FLIGHT ESTABLISHES REASONABLE SUSPICION. State v Kimble, No. 18497 (2d Dist. Ct. Apps., Montgomery Co., 1-5-01). The state appealed from the trial court's granting the defendant's motion to suppress evidence. Dayton police officer James Mullins was dispatched on a 911 disconnected call to 715 Oxford in Dayton. A double house, 711 and 713 Oxford, is very close to 715 Oxford. Officer Mullins knew the area to be rife with guns, drugs, and prostitution. When Officer Mullins approached 715 Oxford, he saw two men on the porch of 711 Oxford. One man ran; the other man walked casually to 711 Oxford. Officer Mullins followed the man who ran. He saw the man, Michael Kimble, walking behind 701 Oxford. When Kimble refused to lay on the ground, the officer tackled and handcuffed him. During the pat down, another officer felt a chunky, hard substance that she believed to be cocaine. The officer removed the cocaine and arrested Kimble. The trial court found that unprovoked flight was insufficient to establish reasonable suspicion to follow him. The state appealed and the Montgomery County Court of Appeals reversed. Although the United States Supreme Court had decided Illinois v Wardlow (2000) 528 U.S. 119, several months before trial, the trial court failed to consider it. The Montgomery County Court noted that the United States Supreme Court in Wardlow had rejected a per se rule that flight justified investigation in favor of a totality-of-the-circumstance test. The facts in Wardlow, the Montgomery County Court continued, were similar to whose in the instant case. In both cases, the area was known for drug activity. Therefore, the court said it was reasonable to stop the defendant and conduct a pat down. The court reversed and remanded for trial. ASSAULT UPON A PEACE OFFICER: INCLUDES SPECIAL DUTY OFFICERS WORKING SECURITY. State v Moore, No. 99-CR-152 (2d Dist. Ct. Apps., Montgomery Co., 1-12-01). Harold Moore Jr. suffered two stab wounds in his back. Having been taken by ambulance to Good Samaritan Hospital, Moore became so belligerent that doctors called hospital security. Three security officers, including David Cann, tried to subdue Moore. Moore bit Cann's hand. Moore was convicted of assaulting a peace officer and he appealed. The Montgomery Court of Appeals affirmed. The court distinguished State v McDonald (Feb. 21, 1997), Mont. App. No. 15661, unreported, based on the status of the victim. Before being hired by the hospital, David Cann had completed the Ohio State Peace Officer training program and was commissioned by the Dayton Police Department as a "special policeman" for the city of Dayton. The appellate court held the evidence sufficient to prove that Cann was a "peace officer." LAW OF THE CASE: TRIAL COURT MAY NOT EXCEED SCOPE OF MANDATE OF APPELLATE COURT. State v Russell, Nos. 18155, 18194 (2d Dist. Ct. Apps., Montgomery Co., 11-20-00). Jevon Russell arranged to have a package delivered to a friend. He told the friend, Wytina Bush, to sign for the package using the name "Tina Smith." Ms. Bush agreed, in exchange for $100.00, to accept the package and page Russell. A Dayton police officer and a drug-sniffing dog were assigned to screen packages at the airport. After the dog alerted to a package, shipped by Federal Express, addressed to "Tina Smith," the officer obtained a search warrant. The package contained a block of marijuana and 450 grams of cocaine. Having obtained a second warrant to put a transmitter in the package, officers dressed in Federal Express uniforms and delivered the package. A man named Fowler was at Ms. Bush's house when she accepted the package. Soon after, Russell arrived and all three left. Fowler was carrying the package. The police moved in and arrested Russell and Fowler. In November 1997, Russell was indicted for possession of cocaine, possession of marijuana, complicity to commit possession of cocaine, complicity to commit possession of marijuana, conspiracy to commit possession of cocaine, and conspiracy to commit possession of marijuana. At the end of the state's case, the court granted the state's motion to amend the possession counts to charge attempted possession. The jury returned guilty verdicts on all charges. Merging none of the counts, the trial court sentenced the defendant to a total of seventeen years. Because the court ordered some sentences to be served concurrently, however, the sentence was essentially nine years. On appeal, the Montgomery County Court of Appeals reversed and remanded for the trial court to determine which sentences should merge under R.C. 2923.01(G). The appellate court decided not to address other issues until the trial court corrected the sentence. The prosecution asked the trial court to merge all counts and sentence on count six, complicity to commit possession of cocaine, a second-degree felony requiring a prison term of two to eight years. The defendant asked that he be sentenced to one year under count six. The defendant argued that, because the state had asked to reduce the first two counts to attempted possession, it should have reduced count six to complicity to commit attempted possession, a third degree felony requiring a prison term of one, two, three, four, or five years. The trial court concluded that the state had failed to prove complicity to commit possession, but had proved complicity to commit attempted possession. However, the court imposed a five-year sentence. The defendant appealed and the state cross-appealed. The defendant argued that reducing the charges in the first two counts to attempted possession violated Crim.R. 7(D) because it changed the name or nature of the offense. The appellate court disposed of that ridiculous argument quickly. The state argued that the trial court had exceeded the scope of the appellate court's mandate by reducing the charge in count six. The appellate court agreed. "Absent extraordinary circumstances - for example an intervening decision of the Supreme Court of Ohio or of the United States - a trial court has no discretion to disregard the mandate of a reviewing court from a previous appeal in the same case." The appellate court had remanded the case to determine "which of the six counts merged with which of the others." As the trial court went beyond that narrow question, the appellate court continued, the trial court erred. The appellate court reversed and remanded to the trial court for resentencing on original count six. |
