 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
OTHER ACTS: OTHER MISCONDUCT OF POLICE OFFICER ADMISSIBLE, WHEN. State v. Knight, No.C-970563 (1st Dist. Ct. Apps., Hamilton Co., 6-5-98). The state brought an interlocutory appeal of the trial court's decision to exclude evidence of the defendant's having committed other acts. Patrick Knight is a Cincinnati police officer accused of six counts of bribery and four counts of sexual battery, involving four victims. The state sought to introduce evidence of three other instances where the officer allegedly offered to ignore criminal charges in exchange for sexual activity. The trial court first severed the counts. The state filed a notice of intent to offer evidence of conduct against the other three victims in each trial. The court ruled such evidence inadmissible and the state appealed. Relying on State v. Lowe (1994), 69 Ohio St. 3d 527, the appellate court referred to evidence that establishes a "behavioral fingerprint." The court continued as follows: Each of the acts provide evidence of the abuse of a position of public trust in exchange for actual or expected sexual favors. In each, there is evidence, that Knight, while in his official capacity as a police officer, stopped women on minor or nonexistent offenses and then used either the offenses or outstanding warrants as the club which he offered not to wield in exhange for sexual favors. Having found the evidence admissible under Evid. R. 404(B), the appellate court then considered whether the evidence was more prejudicial than probative under Evid R. 403. Part of the reason the trial court had excluded the evidence, the trial court said, was that a public official is more likely to be falsely accused than is a private person. The appellate court held that Knight's position provided not a reason to exclude the evidence but an even stronger reason to admit the evidence than if he were a private person. Because a police officer is more likely to be believed by the jury than a private citizen, the other act evidence is even more probative than prejudicial. The court reversed and remanded for trial. [Ed. Note: Bravo! Bill Breyer] SEARCH AND SEIZURE: ARTICULABLE SUSPICION SUFFICIENT, WHEN. State v Beasley, No. 16549 (2d Dist. Ct. Apps., Montgomery Co., 2-13-98) The state appealed from the trial court's granting the defendant=s motion to suppress. At 11:40 P.M., on a winter night, two Dayton police officers were patrolling an area of known drug trafficking. They saw five men standing by a car. When the men saw the cruiser, four men scattered in four directions. The remaining man pulled something from his coat pocket and put it behind the seat of the car. The officers approached the man, Anthony L. Beasley, and conducted a pat-down. Beasley put his hand into a pocket and clenched his fist. An officer grabbed Beasley's wrist. After Beasley had several times refused to remove his hand from his pocket, the officer pulled Beasley's hand, and the baggie of crack clenched therein, from Beasley's pocket. The trial court granted the defendant's motion to suppress evidence of the cocaine. Because the defendant's putting something in the car was "subject to an innocent interpretation," the trial court said, the officer lacked a reasonable suspicion to investigate. The state appealed. The Montgomery County Court of Appeals reversed. The court found the circumstances to be similar to those in State v. Bobo (1988), 37 Ohio St. 3d 177. The court reversed and remanded for trial. INDICTMENT: NOTICE ON AIDING AND ABETTING INSUFFICIENT, WHEN. State v. Killings, Nos. C-970167, C-970247 (1st Dist. Ct. Apps., Hamilton Co. , 5-29-98) Charles Killings was indicted for one count of kidnapping and one count of rape. The state's evidence was that appellant and two of his friends forced a thirteen year old girl into a car, where Killings and one of his friends forced her to engage in vaginal intercourse. The police arrived before the third friend had his turn. The defendant testified the acts were consensual. Upon request of the prosecutor, the court instructed the jury that the defendant could be convicted either as a principal or as an aider and abettor. Killings was convicted and he appealed. The Hamilton County Court of Appeals reversed. The instruction, the court said, forced the defendant to defend against a crime, aiding and abetting his friend's raping the victim, when the indictment gave notice only that the defendant was charged with his own conduct. The court said the defendant should have been charged with two counts of rape. The court remanded for a new trial. POSTCONVICTION: CIV. R. 60(B) MOTION BARRED BY R.C. 2953.21 State v. Talley, No. 16479 (2d Dist. Ct. Apps., Montgomery Co., 1-20-98). On October 13, 1995, Ronald Talley pleaded guilty to attempted murder. On July 1, 1996, he filed a postconviction petition, which the trial court dismissed on September 1, 1996. Talley failed to appeal. On November 27, 1996, Talley filed a motion for relief from judgment under Civ. R. 60(B) and a motion to withdraw his guilty plea. Civil R. 60(B) and Crim. R. 32.1 have no time limitations. Talley filed several other motion and petitions. The trial court overruled all motions and Talley appealed. The Montgomery County Court of Appeals held that a prisoner cannot use a Civ. R. 60(B) motion to attack a dismissal of a postconviction petition. Although postconviction petitions are quasi-civil, the court said, a Civ. R. 60(B) motion is unavailable under R.C. 2953.21. Motions called Civ. R. 60(B) motions, the court continued, should be considered subsequent postconviction petitions. Otherwise a prisoner could use a 60(B) motion to circumvent the requirements for subsequent postconviction petitions adopted by the General Assembly in 1995. The appellate court affirmed the trial court's order. POSTCONVICTION PETITION: REVIEW OF "ENTIRE RECORD." State v. Allen, No. 72427 (8th Dist. Ct. Apps., Cuyahoga Co., 6-4-98). David Wayne Allen was sentenced to death for the 1991 murder of Chloie English. Having exhausted his direct appeals, he filed a postconviction petition on September 20, 1996, which the trial court dismissed without a hearing on April 4, 1997. Allen appealed. On appeal, he asserted that the trial court must have failed to examine the record because 1) The Ohio Supreme Court returned the transcript to the court of appeals not to the trial court and 2) counsel attached photographs of boxes of demonstrative evidence, taped close. The Cuyahoga County Court of Appeals held that neither circumstance proved that the trial court had failed to review the record. Moreover, the court continued, it was unnecessary for the trial court to examine the demonstrative evidence to fairly rule on appellant's petition. The court affirmed the trial court's order. POSTCONVICTION PETITION: DISCOVERY; UNNECESSARY FOR PROCEDURE TO BE ADEQUATE. State v. Allen , supra Appellant also argued that R.C. 2953.21 is an inadequate procedure to allow a defendant to raise constitutional issues relying on evidence de hors the record because R. C. 2953.21 fails to provide for discovery. Citing Steckman v. Jackson (1994), 70 Ohio State 3d 420, in which the Ohio Supreme Court held that a postconviction petitioner could not use R. C. 149.43 to uncover evidence to support a postconviction petition, the Cuyahoga Court of Appeals held that it was not the appellate court's job to tell the Ohio Supreme Court it had been wrong. |
