 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: REVERSE BUY; EXIGENT CIRCUMSTANCES. State v Manning, No. L-99-1344 (6th Dist. Ct. Apps., Lucas Co., 07-28-2000). A confidential informer told Toledo police that a person named "Bob" wanted to buy a large amount of cocaine. Bob lived in Pittsburgh but would drive to Toledo on July 30, 1998, to buy the cocaine. Under R.C. 3719.141, Toledo police obtained two kilograms of cocaine for a "reverse buy." Among other things, R.C. 3719.141 requires that the purchaser take possession of the drugs "in the presence of the police officer that makes the sale." Police officers intended to have the informer introduce Bob to an undercover officer. Bob, a canny fellow, refused to deal with anyone but the informer and refused to leave his hotel room. Eventually Bob gave the informer $20,000 and the informer promised to bring one kilogram of cocaine. In the parking lot, police told the informer that the police were required to keep the cocaine in sight. The informer emerged from Bob's hotel room with keys to an automobile in which the informer put the cocaine. The informer returned the keys to Bob's hotel room and left. A short time later, Robert Manning and a woman left the hotel room. They entered the car, the woman preparing to drive. Police arrested Manning and the woman and recovered the cocaine from the trunk. His motion to suppress evidence having been overruled, Manning entered a no contest plea to possessing cocaine. On appeal, he argued that the police impermissibly created the exigent circumstance that allowed them to search the car by setting up the "reverse buy." Appellant also argued that the police conduct failed to comply with R.C. 3719.141. The Lucas County Court of Appeals affirmed. The statute, the court said, is intended not to protect "purchasers" but to guide police officers. The statute gives no rights to defendants. Additionally, the "exigent circumstance" was not the reverse buy, the court said, but the automobile exception. The court affirmed the conviction. MERGER: PERMISSIBLE TO SENTENCE DEFENDANT ON BOTH ATTEMPTED MURDER AND FELONIOUS ASSAULT FOR SAME CONDUCT. State v Waddell, No. 99AP-1130 (10th Dist. Ct. Apps., Franklin Co., 08-15-2000). Dennis Waddell was charged with one count of attempted murder and three counts of felonious assault, arising from a silly argument over the defendant's name. Waddell and the victim, Charles Bowers, lived next door to each other and were friendly. The defendant was known by "Sir Yen." The defendant, Bowers, Andre Adams, and the defendant's brother, identified only as "Foo," went to the Columbus Jazz and Rib Festival. The defendant was talking to a girl when the other men wanted to move on. Bowers told Adams to call the defendant "Dennis" to get his attention. The defendant became angry and he and Bowers exchanged angry words while pushing and shoving each other. Bowers and Adams separated from the defendant and "Foo." When Bowers and Adams returned to Bowers's apartment, the defendant was pacing outside. The defendant produced a gun and fired a shot at the ground. Adams ran. Bowers grabbed the defendant. The defendant hit Bowers in the face with the gun and then shot him twice in the stomach. As Bowers lay on the ground, the defendant and "Foo" kicked him in the head. Bowers grabbed the defendant, causing him to drop the gun. When the defendant heard sirens, he ran. The jury convicted the defendant on all counts and the court imposed separate sentences on each. The defendant appealed, arguing the attempted murder count merged with the felonious assault count. Although appellant had failed to raise the issue at trial, the court decided the merits, holding that the offenses were separate under R.C. 2941.25. The court remarked that the Ohio Supreme Court in State v Rance (1999), 85 Ohio St. 3d 632 overruled Newark v Vazirani (1990) 48 Ohio St. 3d 81 and rejected the Blocklurger test for determining when offenses merge. The appellate court then said: [A] ttempted murder and felonious assault, do not merge for purposes of sentencing under R.C. 2941.25 because a comparison of their respective elements reveal that they are not offenses of similar import. Each offense requires proof of at least one element that the other does not. The court affirmed the convictions. SEXUAL BATTERY: SUFFICIENT EVIDENCE OF "SUPERVISORY OR DISCIPLINARY AUTHORITY" OVER PRISONERS, WHEN. State v Hresko, No. 76006 (8th Dist. Ct. Apps., Cuyahoga Co., 03-23-2000). Aaron Hresko was employed as a registered nurse at the Cuyahoga County jail. He was charged with three counts of sexual battery. Each count had an accompanying specification alleging that he was a violent sexual predator. Male prisoners complained that Hresko sexually harassed them and tried to cajole, intimidate, or threaten them until they engaged in sexual acts. The Cuyahoga County Sheriff's office outfitted one prisoner with a body wire. The tape recording provided irrefutable proof of the one charge of which the jury convicted the defendant. The opinion fails to specify whether the jury acquitted him of the other two counts or was unable to agree. He was also found to be a sexually oriented offender. The court sentenced the defendant to a year of community service, imposed a fine of $750.00, and ordered the defendant to relinquish his nursing license. On appeal, Hresko argued that he was not guilty of sexual battery because he held no supervisory position. R.C. 2907.03(A)(6) provides: (A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (6) The other person is in custody of law**** and the offender has supervisory or disciplinary authority over the other person. The defendant used a number of tactics: he threatened to withhold medication, he threatened to have his "friends in high places" visit the inmates, he told inmates he could have bonds reduced or obtain special privileges for them. Obviously disgusted with appellant's violation of his medical duty of care to his patients, the Cuyahoga County Court of Appeals held that a jury could find that the state had proved sexual battery, without analyzing what supervisory or disciplinary authority appellant held over the inmate. The court affirmed the conviction. SEARCH AND SEIZURE: BLOOD TEST: RELATIONSHIP BETWEEN R.C. 2317.02 AND 4511.19 WHEN BLOOD TEST NOT REQUESTED BY OFFICER. State v Slageter, No. C-990584 (1st Dist. Ct. Apps., Hamilton Co., 03-31-2000). Randal Slageter, a Cincinnati firefighter, was off-duty and riding his motorcycle when he passed a car on the right and hit a parked car. An accident investigator talked to Slageter and several witnesses before charging Slageter with failing to maintain an assured clear distance. The investigator smelled no alcohol on Slageter and did not suspect that Slageter was intoxicated. After a witness complained to the Sheriff's department and the newspaper that Slageter had been able to avoid charges of DUI because he was a firefighter, the accident investigator obtained Slageter's medical records pursuant to R.C. 2317.02 (B)(2). The records showed a blood-alcohol content of .352. Slageter was charged with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1) and operating a motor vehicle with a concentration of ten hundredths of one percent or more by weight of alcohol in his blood, in violation of R.C. 4511.19(A)(2). His motions to suppress results of the blood test having been overruled, Slageter entered a no contest plea to violating 4511.19(A)(2). On appeal, he argued that the exception from the medical privilege in R.C. 2317.02(B)(2) for blood alcohol tests is inapplicable under R.C. 4511.191(the implied consent statute) because at the time the blood was drawn and tested, Slageter was not suspected of being intoxicated and the investigating officer did not ask the hospital to test the blood. The Hamilton County Court of Appeals used the appellant's reasoning to affirm his conviction. Because he was not suspected of DUI, the court said, the implied-consent law was inapplicable, leaving only R.C. 2317.02(B)(2)(b) to control. That section exempts from operation of the physician-patient privilege results of test for alcohol or drugs "in any criminal action" regardless of who initially requested that the test be performed. The court affirmed the conviction.
EXPUNGEMENT: DEFENDANT MAY FILE ONLY ONE MOTION: NO HEARING ON SECOND MOTION. State v Haney, No. 99AP-159 (10th Dist. Ct. App., 11-23-1999). In 1978, James Thomas Haney killed a drug dealer who was providing drugs to Haney's drug-addicted sister. He was found not guilty by reason of insanity. In 1990, Haney filed an application to have his records sealed under R.C. 2953.52(B)(2). The trial court denied the application and the appellate court affirmed the denial. In 1998, Haney filed a second application to have his records sealed. The trial court found that application barred by the doctrine of res judicata. On appeal, appellant argued that res judicata is inapplicable to motions to seal criminal records. The court held the doctrine applicable but said that changed circumstances might justify finding the doctrine inapplicable in particular cases. However, appellant's reason for seeking expungement, his record interfered with his seeking employment as a paralegal, was the same in both the first and the second motion. As the trial court had already found that the state's interest in maintaining the record outweighed appellant's interests in having the record sealed, appellant could not relitigate the issue. Although R.C. 2953.52(B)(1) provides that a court "shall" hold a hearing on an expungement motion, the court continued, a hearing is unnecessary on a second application. The court affirmed the trial court's order.
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