 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: WHAT MAY BE CONSIDERED TO DETERMINE WORST FORM OF OFFENSE. State v Hess, No. OOAP-13 (10th Dist. Ct. Apps., Franklin Co., 2-13-01). The Franklin County Grand Jury indicted David Hess on two counts of involuntary manslaughter, one count of felonious assault, and one count of endangering children. All counts alleged the same victim, the six-year-old son of the defendant's girlfriend. Hess worked at the post office until midnight. His girlfriend was a nurse who worked the night shift. At 12:30 a.m., Hess collected the child at the babysitter's. Hess and a friend drank whiskey and talked until the friend left at 3:00 a.m. After the friend left, Hess engaged in what he called "playful wrestling with the child." When the child's mother came home at 7:20 a.m., and called the emergency squad, the victim was unresponsive, barely breathing, and had cold skin and blue lips. Hess had done nothing and called no one to help the little boy. The victim died the following day at Children's Hospital. Hess entered a guilty plea to one count of involuntary manslaughter based on endangering a child. The state requested the court to enter a nolle prosequi on each of the other three charges. The trial court imposed the maximum ten-year sentence. On appeal, the defendant argued that the court erred in finding that he committed the worst form of the offense. The appellant argued that the court could consider only that the defendant acted recklessly, as that was the mental element of the single offense to which the appellant pleaded guilty, based upon his failure to seek aid for the victim. The Franklin County Court of Appeals rejected that argument as follows: "Defendant would seek to have the seriousness of the offense judged only by the passive behavior of defendant not extending beyond any consideration of something more than recklessness, since that was the count to which he entered a guilty plea. We reject that analysis. Endangering herein arose from a single connected series of events and the death of the child arose from those circumstances as well. It was entirely proper for the trial court to consider what happened during the trauma defendant inflicted upon the child prior to the time he neglected to obtain any medical aid for the child. "R.C. 2929.14(C) provides in pertinent part, as follows: [T]he court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense ***. "In deciding whether defendant committed the worst form of the offense of involuntary manslaughter, which occurred as a result of endangering the child, the court may consider all of the acts, both passive and active, that the defendant committed during the period of endangering. The fact that some of the acts of defendant may arguably have amounted to felonious assault, does not alter the fact that they may be considered for the purposes of sentencing. When recklessness suffices to establish an element of an offense, knowledge or purpose is also sufficient culpability for such element. R.C. 2901.22(E)." The court of appeals affirmed. ARGUMENT: PROSECUTOR MAY COMMENT THAT DEFENDANT HEARD ALL TESTIMONY BEFORE HE TESTIFIED. State v Griffin, No. L-98-1215 (6th Dist. Ct. Apps., Lucas Co., 11-17-00). Antwon Griffin was charged with murder and felonious assault. In an unusual version of a drive-by shooting, the victims, Edward Green and Durrell Galloway drove past Griffin's house and Griffin shot them. Green died. At Griffin's trial, the prosecutor in closing argument said the following: "And isn't it convenient for him that he gets to sit here in the courtroom, listening to every piece of evidence, and then for the very first time say this is what happened because I can tailor exactly what happened to the facts the state presented." The defendant was convicted and he appealed, arguing that the prosecutor's comment impinged upon his right of confrontation. Citing Portuondo v. Agard (2000) 120 S. Ct. 1119, the Lucas County Court of Appeals rejected that argument and affirmed the conviction. CHARGE: DISMISSAL FOR VIOLATION OF CRIM. R. 4(E) INAPPROPRIATE. State v Sauceman, No. 99CA137, (7th Dist. Ct. Apps., Mahoning Co., 8-22-00). On May 9, 1999, a state liquor enforcement agent arrested Traci Sauceman for selling liquor on Sunday without a permit. Having posted bond, she was released the same day. When she appeared with counsel for arraignment the next morning, the court continued the arraignment because the officer had not yet filed the charge. On May 13, 1999, the agent filed a complaint and Ms. Sauceman moved for dismissal with prejudice for failing to comply with Crim. R. 4(E). That rule requires that a complaint be filed against a person arrested without a warrant "without unnecessary delay." The municipal court granted the motion to dismiss and the state appealed. In a 2-1 decision, the Mahoning County Court of Appeals reversed. The majority cited many cases from the Ohio Supreme Court and appellate courts, including State v. Cowans (1967) 10 Ohio St. 2d 96 and Thurston v. Maxwell (1965) 3 Ohio St. 2d 92, that have held that a slight delay in arraignment, that causes no prejudice, fails to justify dismissing the charge. Judge Cox dissented because, "If the state violates Crim. R. 4(E)(2), what can the court do?" If there is no penalty for violating a rule, he reasons, there is no rule. The court reversed and remanded the case for trial. COMPLICITY: AIDING AND ABETTING, EVIDENCE INSUFFICIENT, WHEN. State v. Johnson, No. 96C.A.190 (7th Dist. Ct. of Apps., Mahoning Co., 6-30-00). Leslie Johnson was convicted of complicity in the commission of an aggravated murder and three counts of complicity to attempt to commit aggravated murder. Johnson was a member of the Crips gang. Members of the Bloods gang attacked Johnson and other Crips, wounding Edward McGaha. Johnson, McGaha, and other Crips planned to kill the primary actor, Blood member Richard Miles, aka "Boom." Johnson rode in the back seat of a car driven by Denicholas Stoutmire. Also in the rear seat was Sidney Cornwell. At 3:30 a.m., the car stopped in front of an apartment where Stoutmire apparently believed Miles would be. Several people were sitting on the porch. Cornwell asked them if Miles was there. Receiving a negative answer, Cornwell said "Tell Boom this" before spraying the porch with bullets. Cornwell hit four people. The three adults survived; three-year-old Jessica Ballew died. On appeal, Johnson argued that the state had failed to prove that he had done anything to "aid and abet" Cornwell in the shooting. In a 2-1 decision, the appellate court agreed. Although there was ample evidence to prove Johnson guilty of conspiracy to kill Boom, the court said, the state had not charged the defendant with conspiracy. Conspiracy, the court continued, is a separate crime that must be indicted. The court found the evidence insufficient and reversed. SEARCH AND SEIZURE: BAG REMOVED FROM DEFENDANT AFTER ARREST PROPERLY SEARCHED. State v. Sharpe, No. 99-510-CA (7th Dist. Ct. Apps., Harrison Co., 6-30-00). The state appealed from the trial court's granting the defendant's motion to suppress evidence. On September 11, 1998, William Sharpe attended an event called a Hippie Fest at Hide-A-Way Hills Campground. Among the other attendees were several undercover agents from the State Bureau of Criminal Investigation. The agents saw appellant work the crowd, selling drugs he removed from his backpack. At least two BCI agents claimed to have purchased LSD and psilocybin. The agents arrested Sharpe. Removing Sharpe's backpack, the agents placed it on the trunk of the cruiser of a Harrison County deputy sheriff. The agents handcuffed Sharpe, before emptying his backpack onto the hood. Officers seized drugs and money. The trial court granted the defendant's motion to suppress. The court reasoned that the officers needed a warrant to search the bag because it was no longer under Sharpe's control. The state appealed and the Harrison County Court of Appeals reversed. Citing Chimel v. California (1969) 395 U.S. 752; United States v. Robinson (1973) 414 U.S. 218; and State v. Mathews (1976), 46 Ohio St. 2d 72, the Harrison County Court of Appeals, in a 2-1 decision, held that a search incident to a lawful arrest was both a reasonable search and an exception to the warrant requirement. The court reversed and remanded for trial. POST-RELEASE CONTROL: SANCTION NOT CRIMINAL PUNISHMENT. NO DOUBLE JEOPARDY BAR TO PROSECUTING FOR ESCAPE. State v. Hite, No. 77374, (8th Dist. Ct. Apps., Cuyahoga Co., 12-14-00). The state appealed from the trial court's dismissing an indictment charging Reggie Hite with escape. In 1997, Reggie Hite entered guilty pleas to impersonating an officer and attempted abduction. Having been sentenced to concurrent seventeen month terms, Hite was granted post-release control on July 11, 1998. He violated the terms of his post-release control and served a sixty-day sanction. On June 3, 1999, the Cuyahoga County Grand Jury indicted Hite for escape. Agreeing with the defendant that the indictment violated the Double Jeopardy Clause, the trial court dismissed the indictment. The state appealed and the Cuyahoga County Court of Appeals reversed. As the post-release control was part of the defendant's original sentence, the court said, it was not a separate punishment. Moreover, as the sanction for violating post- release control was not a "criminal punishment," that sanction failed to preclude prosecution for escape. The court reversed and remanded for trial. ESCAPE FROM POST-RELEASE CONTROL. State v. Wellbaum, No. 2000 CA 5 (2nd Dist. Ct. Apps., Champaign Co., 9-1-00). In 1997, Timothy Wellbaum was convicted of gross sexual imposition. The court sentenced him to seventeen months and informed him he would be subject to a maximum of five years post-release control. On August 18, 1998, Wellbaum signed a document explaining conditions for five years of post-release control. One of the conditions was that Wellbaum would live with John Schearer in Champaign County. On March 8, 1999, Wellbaum was released from prison. He called his parole officer, Rick Harmon. Mr. Harmon told him to go to Mr. Schearer's house and wait for Mr. Harmon to call him. When Mr. Harmon tried to reach Wellbaum, however, he learned that Wellbaum was not living with Mr. Schearer. On March 12, 1999, the Adult Parole Authority declared Wellbaum to be a parole violator. Located on March 24, 1999, Wellbaum admitted violating the conditions of his post- release control and was sanctioned with 110 days in the Logan County jail. He completed serving the 110 days on July 12, 1999. On April 15, 1999, the Champaign County Grand Jury had indicted Wellbaum for escape, based on Wellbaum's failing to reside at the approved address in Champaign County. Having been convicted, Wellbaum was sentenced to three years of community control sanctions. On appeal, Wellbaum argued he was improperly convicted of escape because he had never been under "detention." On March 17, 1999, the Champaign County Court of Appeals observed, the General Assembly amended the escape statute to include those on post-release control in the category of persons under "detention." The court affirmed. VENUE: NEXUS WITH COUNTY. State v. Wellbaum, supra. Wellbaum also argued that the state failed to prove venue because he never entered Champaign County. The court held that venue in Champaign County was proper because appellant broke detention by failing to report to Mr. Schearer's house. As one of the elements of escape occurred in Champaign County, venue was proper. POST-RELEASE CONTROL STATUTE CONSTITUTIONAL. State v. Wellbaum, supra. Finally, citing Woods v. Telb (2000) 89 Ohio St. 3d ____, the Champaign County Court of Appeals held the post-release control statute constitutional. Unlike the bad-time provision, the court said, post-release control is imposed as part of a defendant's sentence. The court affirmed the conviction.
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