 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: SEARCH INCIDENT TO ARREST. State v Brown, No. 17965 (2nd Dist. Ct. Apps., Montgomery Co., 01-28-00). The state appealed from the trial court's granting the defendant's motion to suppress evidence. Two police officers, John Beale and Chris Smith, in separate cruisers slowly drove a Dayton block about which police had received many complaints of drug activity. Sydney Brown, walking toward a car, saw the cruisers and yelled, "Police!" Three persons who had been sitting on the porch of a house scurried inside and closed the door. Brown got into the back seat of the car, in which his wife, Sherrie, sat. Maria Henry, who owned the car, sat behind the wheel. While officer Smith ran record checks on Maria Henry and Sherrie and Sydney Brown, Officer Beale watched the three persons in the car. Officer Beale saw Brown put something in what appeared to be legal documents, fold the paper, and put the paper on the seat between his wife and himself. Officer Smith, having discovered a warrant for Mr. Brown's arrest, removed Brown from the car, arrested him, and put him in a cruiser. Officer Beale asked Mrs. Brown and Ms. Henry to alight from the car. He retrieved the papers, which concealed crack cocaine. Mrs. Brown was also arrested on a prior warrant. Indicted for possession of crack-cocaine, Brown filed a motion to suppress evidence. The trial court granted the motion and the state appealed. The state argued that 1) the police had sufficient reasonable suspicion to investigate Brown; 2) even if the initial stop was invalid, discovering the warrant for Brown's arrest justified his detention, and; 3) the arrest pursuant to warrant justified the search incident to arrest. Although the state had failed at the trial to raise the second and third arguments, the appellate court considered them because, the appellate court said, the trial court's granting the defendant's motion had been plain error. The trial court had held that the initial detention had been unlawful and, therefore, everything flowing from it was tainted. The trial court apparently ignored a long line of cases in which the appellate court had held that "regardless of whether a police officer's initial stop of an individual was unlawful, the discovery of an outstanding warrant for that individual justifies his arrest." As the arrest was lawful, the court continued, the officers could search the passenger's compartment of the car pursuant to arrest. The Montgomery County Court of Appeals distinguished the Ohio Supreme Court Case of State v Brown (1992), 63 Ohio St. 3d 349 by giving effect to every word in the syllabus, which provides as follows: A police officer may not open a small, closed container found inside an automobile's glove compartment solely as a search incident to the driver's arrest for a traffic violation, after the officer has the suspect - and sole occupant of the vehicle - under control in the police cruiser. As Sydney Brown was not the sole occupant of the car, the court said, the instant case is different from the cited case. Moreover, a search incident to arrest is not limited to a search for weapons but may also include a search for evidence. The court reversed and remanded for trial. SEARCH AND SEIZURE: INVESTIGATIVE STOP. State v Creek, No. C-990781 (1st Dist. Ct. Apps., Hamilton Co., 06-07-00). The state appealed from the trial court's granting the defendant's motion to suppress unspecified evidence in a trial on unspecified charges, seized in an unspecified manner, from an unspecified place. Cincinnati Police Officer Shari broadcast that a blonde woman, for whom an arrest warrant was outstanding, had just driven away in a red car from a house the officer had under surveillance. Two other officers, Totter and Texter, saw blonde Heather Creech drive past in a red car. When stopped, she produced a military ID but no driver's license. After officer Texter requested a records check on Creech, but before Texter had received a reply, Shari drove by and told Texter and Totter that Creech was a different woman. "Almost simultaneously," Texton learned that Creech's driver's license had been suspended. The opinion fails to describe what happened after that. Presumably the officer arrested Creech and found something either on her person or in her car. Whatever it was, the trial court suppressed it and the state appealed. Because Officer Shari told the other two officers that Creech was not his suspect before they learned she was driving without a license, the trial court said, the reason for detaining Creech had dissipated and further detention was illegal. Therefore, although the officers learned that Creech was driving without a license only seconds after learning she was not the woman with the outstanding warrant, the trail court believed, the evidence was illegally seized. [Query: Should the officers have allowed her to drive away and then stopped her for driving without a license, or were they required to just let her drive away illegally?] The state appealed and the Hamilton County Court of Appeals reversed. As the events happened almost simultaneously, the appellate court said, the officers were not required to ignore the information legally requested. The court reversed and remanded for trial on the charged offense. POLYGRAPH: DEALING WITH COUNTER - MEASURES; INSTRUCTIONS. State v Nichols, No. 99AP-1090 (10th Dist. Ct. Apps., Franklin Co., 5-27-2000). In November, 1993, Arnold Nichols and three friends, having just robbed a family 30 minutes earlier, decided to rob David Parker and Angela Joche. Mr. Parker and Ms. Joche were sitting in her car parked in the driveway of Mr. Parker's home. The couple had been out to dinner and Mr. Parker was preparing to go inside. Having opened the car door, Arnold Nichols stuck a gun in David Parker's neck and demanded his wallet. Mr. Parker's wallet was in the trunk in his gym bag. Ms. Joche gave Nichols $3.00, all the money she had after having paid for their meal. When Nichols saw Mr. Parker's roommate through the window of Mr. Parker's house, he yelled "Get him off the phone." Apparently realizing the impossibility of his demand, Nichols shot Mr. Parker instead. David Parker instantly became a quadriplegic. Nichols fled. Ms. Joche had been unable to see the robber. Mr. Parker looked at hundreds of photographs over many months. Eventually a tip from the earlier robbery led police to include appellant's photo in an array. Mr. Parker selected appellant's photo and identified appellant in each of three trials. Appellant was convicted of attempted murder, felonious assault, and two firearm specifications. The Franklin County Court of Appeals reversed the first conviction because the court found that defense counsel had provided ineffective assistance of counsel. The court reversed the second conviction because the trial court admitted evidence of the unrelated robbery. Before the third trial, Arnold Nichols suggested that he take a polygraph. During the exam, appellant used what the polygraphist called "countermeasures" to try to defeat the test. The most notable was that Nichols slowed his breathing to a third of his normal breathing pattern and answered questions by blowing out air and drawing out his words, so that "no" became "N-o-o-o." The state's polygraphist testified that he was taught not to score a test when a person uses countermeasures because the person must be lying. The witness testified that Nichols answered one crucial question deceptively. The defendant called his own expert, a polygraphist from Iowa. This person reviewed the graphs. Not only did he conclude that the test could be scored, but also he concluded that the score meant that appellant was telling the truth about being somewhere else during the shooting. Additionally, the defendant's expert said that the state's expert was wrong about the countermeasures. The defendant's expert opined that the drawn out breathing was caused by appellant's asthma. Finally, the defendant's expert announced that if the state's expert were in his class, he would give him a failing grade. The defense expert did admit that he once concluded that a defendant charged with serial rapes and murders was innocent. The defendant, after having been convicted anyway, confessed. Having been convicted a third time, Nichols argued that the trial court committed plain error by failing to give the instruction from State v Souel (1978), 53 Ohio St. 2d 123. That instruction essentially tells the jury to distrust polygraph tests. The Franklin County Court of Appeals concluded that the instruction would have damaged the defendant since it was his witness who was trying to convince the jury that the polygraph proves the defendant to be innocent. The state's expert said the polygraph was invalid because the defendant had used countermeasures. As the defendant benefited from the absence of the instruction, the court continued, he cannot argue on appeal either that the court should have so instructed sua sponte or that his counsel was ineffective for failing to request the instructions. The court merged the two three-year firearm specifications but otherwise affirmed. SEXUAL PREDATOR: THE MONTGOMERY COUNTY RULE. State v Fleming, No. 17897 (2nd Dist. Ct. Apps., Montgomery Co., 6-16-2000). William Fleming was convicted in 1995 of rape and ajudicated a sexual predator in 1999. He appealed. The Montgomery County Court of Appeals reversed, holding that the trial court had erred by considering itself "required to consider the factors prescribed in R.C. 2950.02 (B)(2)." In State v White (Nov. 5, 1999) Miami App. No. 98-CA-37, the Second District Court of Appeals had held that "[I]t is beyond the constitutional power of the General Assembly to prescribe particular factors that a trial judge must consider when finding a fact." Therefore, the court continued, as the trial court considered itself obligated to consider the factors listed in R.C. 2950. 09(B)(2), the appellate court reversed and remanded for the court to determine anew whether Fleming is a sexual predator. SEXUAL PREDATOR: YOUNG CHILDREN. State v Dingus, No. 99AP-1053 (10th Dist. Ct. App., Franklin Co., 6-27-2000). Terry R. Dingus was convicted in 1992 of one count of rape and eight counts of sexual battery. The victim was his stepdaughter, who was twelve years old when the sex began and eighteen when it stopped because she left home. The trial court determined Dingus to be a sexual predator. Dingus appealed, arguing he was innocent. Whether Dingus committed the acts, the courts said, had long ago been determined. Unlike the Montgomery County Court of Appeals, the Franklin County Court had no problems with R.C. 2950.09 (B)(2), saying "Under R.C. 2950.09 (B)(2), the trial court can consider all relevant factors in determining future propensity." Affirming the trial court, the appellate court said the following .....a defendant's willingness to exploit persons who are relatively defenseless and in the guardianship or custody of the defendant, indicate a strong danger that defendant will seek to exploit similarly defenseless children in the future. ****[I]t is virtually undisputed that there is a high potential of recidivism among sex offenders whose crimes involve the exploitation of young children. CIVIL PROCEDURE: HABITUAL SEXUAL OFFENDER, CIV. R. 60(B) NO SUBSTITUTE FOR APPEAL. State v Childers, No. 17963 (2nd Dist. Ct. Apps., Montgomery Co., 5-5-2000). Thomas Childers pled guilty in 1978 to rape, aggravated robbery, and other related charges. On July 16, 1999, the trial court declined to find him to be a sexual predator but found him to be a habitual sex offender. He failed to appeal. On July 26, 1999, Childers filed a motion entitled "Motion to Adjust Entry: Defendant is Sexually Oriented offender, not habitual sex offender." The court overruled the motion on September 15, 1999. Responding to the state's motion to dismiss, appellant argued that his pleading should be construed as a Civ. R. 60(B) motion. The appellate court disagreed, as follows: Whether a sexual offender classification proceeding, pursuant to R.C. 2950.09 is a civil proceeding to which Civ. R. 60(B) applies is a nice question, but not one that we need to decide in this case. Even if Civ. R. 60(B) applies in this case, it may not be used as a substitute for appeal. The court dismissed the appeal. WELFARE FRAUD: AMOUNT OF THEFT INCLUDES NOT JUST OVERPAYMENT BUT ALL PAYMENTS. State v Edmonson, No. 18061 (2nd Dist. Ct. Apps., 6-16-2000). Michelle Edmonson received Aid to Dependant Children benefits and food stamps between 1990 and 1994. She failed to report that she was working. She received $12,829 in ADC and $8,836 in food stamps. Had she been truthful, she would have received $10,414 in ADC benefits and $6,625 in food stamps. Edmonson was indicted for two counts of theft by deception of over $5,000, fourth degree felonies. The parties stipulated to all facts except whether the amount of the theft was the total amount received or only the overpayment. The trial court agreed with the defendant and convicted her of lesser included offenses of theft of $2,415.00 in ADC and $2,211.00 in food stamps, fifth degree felonies. The court of appeals granted the state's leave to appeal. The appellate court agreed with the state and invited the defendant to file a motion to certify the case as being in conflict with State v Luna (1994), 94 Ohio App 3d 653, a case from the Sixth District Court of Appeals. The Montgomery County Court ruled "[T]he judgment of the trial court is Reversed [sic] and Remanded [sic] for further proceedings consistent with this opinion." [Ed Note: Query: As the court convicted the defendant of lesser included offenses, what "further proceedings" are there?]. PHYSICIAN-PATIENT PRIVILEGE: VICTIM NEED NOT WAIVE. State v Washington, No. 99AP-640 (10th Dist. Ct. Apps., Franklin Co., 6-8-2000). Billy Joe Washington wrecked his girlfriend's car in a bad neighborhood at 2:30 A.M. He started to walk, carrying his girlfriend's gun. The first police officer to arrive at the accident scene, Officer Weinman, approached Washington. According to the officer, he wanted to conduct a patdown before putting Washington in his cruiser to prepare an accident report. According to Washington, the officer approached him with gun drawn and ordered him to lie down. The result of the ensuing altercation was that Officer Weinman was shot and Washington fled in the officer's cruiser. The Grand Jury indicted Washington for attempted murder, felonious assault, robbery, unauthorized use of property, failure to comply with a police order, and firearm specifications. The jury acquitted the defendant of attempted murder but convicted him of the other charges. The defendant appealed. During trial, the defendant had attempted to either get the officer's medical records or have the court view them in camera. The defendant argued the records might contain something to support his claim of self defense. The officer testified only that he was shot and admitted to the hospital. That testimony, the trial court ruled, was insufficient to waive the officer's physician-patient privilege. The defendant was convicted and he appealed. The Franklin County Court of Appeals affirmed. A victim need not waive his medical privilege. Appellant developed nothing while cross examining the officer, the court continued, to show that the records might be exculpatory. Therefore, the court held, no in camera review was necessary. Because the trial court failed to make the necessary finding for sentencing, the appellate court remanded for resentencing, but otherwise affirmed.
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