 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
EVIDENCE ALIUNDE: COURT MAY NOT RELY ON JUROR'S AFFIDAVIT WITHOUT EVIDENCE ALIUNDE. State v. Baker, No. 98-06-010 (12th Dist. Ct. Apps., Fayette Co., 4-12-99). Michael Baker was convicted of corrupting another with drugs because he forced an undercover officer to smoke crack cocaine. The officer bought an ounce of crack. When he declined Baker's suggestion that he smoke the crack with Baker, saying he only sold the stuff, Baker told him he would smoke the crack or he would not leave the apartment. Baker was convicted on May 8, 1998. On May 22, 1998, he filed a motion for new trial to which he attached an affidavit of a juror. The juror averred that other jurors had said that all Baker's siblings sold drugs and, therefore, he must also sell drugs. The juror further swore that the other jurors pressured her into signing the guilty verdict. The trial court granted the defendant's motion for new trial, saying the following: "Ohio Criminal Rule 33 provides that the court may order a new trial when there is irregularity in the proceedings or mis- conduct of the jury. It appears that one of the jurors signed a verdict form which did not correspond with her decision. Under these circumstances the court finds that the defendant is entitled to a new trial." The appellate court granted the state's motion for leave to file an appeal, and ultimately reversed the trial court. A plethora of cases including State v. Schiebel (1990) 55 Ohio St. 3d 71 and State v. Adams (1943), 141 Ohio St. 423, require, as does Evid. R. 606(B), that outside evidence of juror misconduct exist before either testimony or an affidavit of a jury about the jury's deliberative process may be considered. Federal cases, the appellate court continued, are inapplicable because the federal evidentiary rule lacks the evidence aliunde requirement of Ohio's Evid. R. 606(B). The appellate court reversed the trial court and reinstated the conviction. SPEEDY TRIAL: PROSECUTION OF FELONY PERMITTED AFTER MISDEMEANOR BASED ON SAME CONDUCT DISMISSED, WHEN. State v. Spencer, No. 97CA2536 (4th Dist. Ct. Apps., Scioto Co., 11-4-98) Michael Spencer owned a convenience store in Scioto County. The Scioto County Sheriff's Department received complaints that Spencer had been selling stolen Pepsi. The sheriff's department asked the Ohio Department of Taxation and the Ohio Bureau of Criminal Investigation to help investigate what proved to be a long practice of buying stolen Pepsi, selling it below fair market value, and failing to collect sales tax and deliver the tax to the state. The Scioto County Grand Jury on April 29, 1996 indicted Spencer on twelve counts of failing to remit tax in violation of R.C. 5739.12(A); twelve counts of filing a false or fraudulent sales tax return, in violation of R.C. 5739.30(A); and twelve counts of filing a false or fraudulent return with intent to defraud, in violation of R.C. 5703.26. On August 28, 1996, Spencer filed a motion to dismiss the misdemeanor counts for failing to conduct a speedy trial. The court on September 17, 1996, granted that motion. Relying on R.C. 2945.73(D), Spencer then filed a motion to dismiss the felony counts because the misdemeanor counts had been dismissed. R.C. 2945.73 provides in part as follows: "(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 or the Revised code. "(C) Regardless of whether a longer time limit may be provided by sections 2945.71 and 2945.72 of the Revised Code, a person charged with misdemeanor shall be discharged if he is held in jail in lieu of bond awaiting trial on the pending charge: (1) for a total period equal to the maximum term of imprisonment which may be imposed for the most serious misdemeanor charged; (2) For a total period equal to the term of imprisonment allowed in lieu of payment of the maximum fine which may be imposed for the most serious misdemeanor charged, when the offense or offenses charged constitute minor misdemeanors. "(D) When a charge of felony is dismissed pursuant to division (A) of this section, such dismissal has the same effect as a nolle prosequi. When an accused is discharged pursuant to division (B) or (C) of this section, such discharge is a bar to any further criminal proceedings against him based on the same conduct." (emphasis supplied) The trial court overruled the motion and Spencer entered no contest pleas to two counts of filing a false or fraudulent sales tax return. The Scioto County Court of Appeals affirmed. Distinguishing State v. Adams (1995), 105 Ohio App 3d 492, in which the trial court had dismissed subsequently indicted felony charges, the court held R.C. 2953.73(D) inapplicable when misdemeanor and felony charges are brought in the same indictment. SPEEDY TRIAL: CONVICTION ON TIME-BARRED LESSER INCLUDED OFFENSE OF AGGRAVATED MURDER PROHIBITED, WHEN. State v. Price, No. 98AP-428 (10th Dist. Ct. Apps. Franklin Co., 12-22-98) On March 12, 1989, Timothy Welch was robbed and murdered. On May 29, 1997, Bennie Price and his brother, Andre Price, were indicted for aggravated murder, murder, kidnapping, aggravated robbery and having weapons while being under disability. For reasons unstated in the opinion, a drug enforcement agent failed to come forward, although he knew in 1989 of the defendant's alleged involvement in the murder. Upon motion of the defendant, the trial court dismissed all charges except aggravated murder because the charges were barred by the statute of limitations. In a bench trial and, apparently without a request from the defendant, the court found the defendant guilty of voluntary manslaughter as a lesser included offense of aggravated murder. The state appealed the dismissals and the defendant cross-appealed the conviction of voluntary manslaughter. The Franklin County Court of Appeals affirmed the court's dismissing the offenses other than aggravated murder. The court also reversed the conviction on voluntary manslaughter. A defendant cannot be convicted of charges on which the statute of limitations has expired, the court said, even as lesser included offenses of a charge on which the statute of limitations permits prosecution. The court ordered the defendant discharged. [Ed. Note: other courts have held that a court may refuse to instruct a jury on a time-barred lesser included offense unless the defendant waives the right to assert the defense of a violation of the statute of limitations.] VENUE: DRUG SALE ARRANGED ON TELEPHONE; VENUE PROPER IN COUNTY TO WHICH CALL IS MADE. State v. Tucker, No. 98CA25 (5th Dist. Ct. Apps., Fairfield Co., 4-27-99). A confidential informant at a B.P. station in Lancaster telephoned Michael Tucker's pager, a number with a Columbus area code. Tucker immediately called the B.P. station. The two men arranged several drug buys. The informant drove to Columbus where he bought cocaine from Tucker. The Fairfield County Grand Jury indicted Tucker on nine counts of trafficking in crack. The defendant argued that Franklin County was the proper venue. The court overruled the motion, holding that venue was for the jury to determine. The jury asked a question, "By definition of the law, if an offer is made over the phone, is the offer considered to be in the county where the call originates from, or the county where the call is answered, or both?" The prosecutor and the defense attorney agreed the answer should be "both." The jury convicted appellant of six counts, but acquitted him of two counts arising from events when appellant failed to return the informant's call. (The opinion fails to report the result on the ninth count). On appeal, the defendant raised the issue of venue. The appellate court said that the informant's paging appellant from Fairfield County was insufficient to establish venue but that appellant's responding to the page and calling the informant in Fairfield County established venue in Fairfield County. The court affirmed the convictions. DOUBLE JEOPARDY; DOMESTIC VIOLENCE AND BURGLARY SEPARATE. State v. Jolley, No. C-980715 (1st Dist. Ct. Apps., Hamilton Co., 5-7-99) James Jolley broke down the door of the home where he and his estranged wife had lived and where she still lived. He searched the house for her but police arrived before she suffered injury. Jolley entered a no contest plea to a misdemeanor charge of domestic violence, admitting that he "had caused Mary Jolley, a family member, to believe that he would cause her physical harm." A month later, the grand jury charged Jolley with burglary, alleging he had trespassed in an occupied structure with purpose to commit a criminal offense. Jolley filed a motion to dismiss, claiming his conviction on domestic violence barred prosecution on burglary. The trial court's having overruled his motion, Jolley entered a no contest plea. The Hamilton County Court of Appeals held that burglary and domestic violence are not allied offenses, as each can be committed without also committing the other. Despite the admonition of Newark v. Vazerani (1996) 48 Ohio St 3d 81 that courts should decide whether a separate animus existed only if the court finds the offenses are allied offenses of similar import, the Hamilton County appellate court nevertheless also found a separate animus. The court affirmed the conviction. PRETRIAL MOTIONS: WEIGHT OF EVIDENCE QUESTIONS INAPPROPRIATELY DECIDED PRETRIAL. State v. Jolley, supra. Jolley also filed a pretrial motion to dismiss claiming he had never relinquished his interest in the marital residence and, therefore, could not be guilty of trespass. The trial court overruled that motion. The issue of trespass, the appellate court said, was an element of the offense to be determined at trial and could not be determined in a pretrial motion to dismiss. Moreover, the court continued, appellant's no contest plea waived his right to attack the sufficiency of the evidence proving the elements of the offense. [Ed. Note: The opinion contains a syllabus paragraph obviously intended for another case, a tort action. That error has no legal effect, as syllabus paragraphs state the law of the case only in Ohio Supreme Court cases Parkview Hospital v. Hospital Services Assn. of Toledo(1966), 8 Ohio App. 2d 315.] |
