 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
IDENTIFICATION: MOTION TO SUPPRESS IDENTIFICATION INVOLVES BOTH THE SUGGESTIVENESS OF IDENTIFICATION AND FACTORS OF NEIL V BIGGERS (1972), 409 U.S. 188. State v Curry, No. 99 AP-1319 (10th Dist. Ct. Apps., Franklin Co., 08-29-2000). Lance Curry was accused of two robberies. At a hearing on the defendant's motion to suppress the identification testimony of a witness to one robbery, the trial court refused to allow the defense attorney to question the witness about the lighting, her ability to see the robber, and other factors considered relevant under Neil v Biggers, supra. The trial court said the following: What we are here to discuss today is whether or not the police used some tactic or some method to suggest to her or that was overly suggestive to her as to whom she should identify, and, thereby, violate the constitutional rights of the defendant. Now I want to stick to that because I got about 27 cases today and I'm not going to sit her and listen to whether or not the lights were bright or the lights were dim. That's weight not admissibility. Two separate issues that lawyers should know about. About 95 percent of them come in here and don't know the difference. Although the defense attorney cited Neil v Biggers, supra, the court refused to allow the questions. When defense counsel attempted to ask the questions anyway, the prosecutor objected and the court sustained the objection. The Franklin County Court of Appeals held not just that the case should be remanded for a proper hearing but that the identification should be suppressed. A motion to suppress identification depends not upon the suggestive nature of the identification procedure, although that is relevant, but upon the reliability of the identification. The reliability of the identification, the court said, depends upon the ability of the witness to observe, the degree of certainty exhibited by the witness, and other circumstances surrounding the offense. The court also reversed the conviction on the second robbery count on different grounds. RESTITUTION: ARSON: State v Zwiebel, No. 00AP-61 (10th Dist. Ct. Apps., Franklin Co., 08-29-2000). Charles Zwiebel was indicted on three counts of aggravated arson, R.C. 2909.02 (A)(1), a first degree felony, and one count of aggravated arson as a second degree felony. Appellant set fire to a bowling alley where he worked. A jury acquitted the defendant of the three first degree felony charges but convicted him of aggravated arson as a second degree felony under R.C. 2909.02(A)(2). The trial court sentenced the defendant to a maximum term of eight years and ordered restitution of $88,000. On appeal, the defendant argued, among other things, that the court erred in ordering restitution. R.C. 2919.18(A) allows restitution for economic loss "as a result of criminally injurious conduct." [The statute, R.C. 2929.01(N) has since been amended]. R.C. 2743.51(C), as in effect at the time of appellant's sentencing, defined "criminally injurious conduct" as "any conduct that ***poses a substantial threat of personal injury or death." Equating "substantial risk of serious physical harm to any person" with "criminally injurious conduct," the appellant argued that he could not be ordered to pay restitution because he had been acquitted of the offense that required a substantial risk of serious physical harm. R.C. 2909.02(A)(1) provides "[n]o person, by means of fire or explosion, shall knowingly ***[c]reate a substantial risk of serious physical harm to any person other than the offender." The appellate court disagreed for three reasons: the court found the two phrases unsynomymous; the court said the jury could have acquitted appellant because it found he failed to act knowingly; and the court observed that a sentencing factor, such as whether a defendant engaged in "criminally injurious conduct" need be proved by a preponderance of the evidence only. The court cited State v Casalicchio (1991), 58 Ohio St. 3d 178,181. The court affirmed. COUNSEL, EFFECTIVENESS: FAILING TO REQUEST INSTRUCTION ON LACK OF MOTIVE NOT INEFFECTIVE ASSISTANCE. State v Burroughs, No. 99AP-1278 (10th Dist. Ct. Apps., Franklin Co., 08-10-2000). The victim of attempted murder and felonious assault, eight-months-pregnant Toya Desiree Wright, described an unprovoked attack by Marlon Burroughs. Ms. Wright's boyfriend, Jonathon Kendrick, sold marijuana, sometimes from Ms. Wright's apartment. The opinion fails to say whether Burroughs had ever bought marijuana from Kendrick. The opinion says only that Ms. Wright had seen Burroughs before, presumably with Kindrick. At 11:00 p.m. on a November evening, Burroughs knocked on Ms. Wright's door, asking for Kendrick. Told he was not there, Burroughs said "I will go page him," and left. Shortly thereafter, Burroughs knocked on Ms. Wright's door again. He claimed that Kendrick had told him to wait at Wright's apartment. Wright allowed him inside. After a few minutes of small talk, Burroughs suddenly hit Wright in the head with a brick. He screamed he would kill her and that "you made me do it." Burroughs stabbed her in the neck. Ms. Wright fled to a neighbor's apartment. Burroughs, who lived with his grandmother, came home with blood on his clothes. He left immediately after putting on a jacket. Mrs. Burroughs told police that one of her kitchen knives was missing. When arrested at his uncle's house, Burroughs was crying and saying "I didn't stab her." Burroughs was convicted of attempted murder and felonious assault. On appeal, he claimed his trial lawyers had provided ineffective assistance by failing to request an instruction on the lack of motive. Appellant relied on State v Lancaster (1958) 167 Ohio St. 391. The Tenth District Court of Appeals, however, observed that State v Lancaster, supra, actually militates against the appellant's argument. In Lancaster, the Ohio Supreme Court held that it is sometimes appropriate for a jury to be told that it may consider lack of motive in deciding whether a defendant committed a murder. However, the court in Lancaster held that the defendant in that case was not entitled to such an instruction. If there is only circumstantial evidence of identity in a murder case, the court said, lack of motive is particularly important and an instruction is appropriate. However, in Lancaster, witnesses had seen the murder. Therefore there was direct evidence of identity. The Franklin County Court of Appeals held that Ms. Wright's direct evidence made an instruction on lack of motive unnecessary. Therefore, counsel's failure to request an instruction was not ineffective assistance of counsel. The court affirmed but remanded for resentencing because the trial court had failed to make the necessary findings for imposing a maximum sentence. PROSECUTORIAL CONDUCT: INDICTING ON ADDITIONAL CHARGES AFTER DEFENDANT REFUSES TO PLEAD, PROPER; DISMISSAL OF CHARGES AT TRIAL FAILS TO SHOW ABUSE OF PROCESS. State v Owens, No. 17522 (2nd Dist. Ct. Apps., Montgomery Co., 04-21-2000). Jimmie Lee Owens was convicted of four counts of rape and one count of gross sexual imposition. Before trial, when the defendant had been indicted on sexual battery and another charge only, the prosecutor offered to allow the defendant to plead guilty to one count of sexual battery. If he refused, the prosecutor told him, she would seek an indictment on seven additional counts of rape. He refused and the prosecutor returned to the grand jury, which indicted the additional counts. After the state's case, consisting primarily of the testimony of the victim, the defendant's fifteen-year-old stepdaughter, the state asked that three counts be dismissed. The jury convicted the defendant of the remaining charges and he appealed. Relying on Bordenkircher v Hayes (1978) 434 U.S. 357, the appellate court rejected appellant's argument that the prosecutor improperly retaliated against him. The court quoted from Bordenkircher, as follows: "[W]hile confronting a defendant with the risk of more serious punishment clearly may have a discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable- and permissible - attribute of any legitimate system which tolerates and encourages the negotiation of pleas." The court was unimpressed with the appellant's argument that the prosecutor's dismissing three charges at trial showed bad faith. Many things, the court said, could explain the prosecutor's dismissing the counts. For example, the court said, the witness may have been less convincing than the prosecutor had hoped or the prosecutor may have decided that counts on which the evidence was weaker would detract from the strength of the case on the remaining counts. The Montgomery County Court of Appeals affirmed the conviction. [Ed Note: Below is an article (edited for length) submitted by an assistant prosecuting attorney. Anyone wishing to submit an article should send it to Joyce Anderson, Chief Counsel, Appellant Division, Franklin County Prosecutor's Office, 369 South High Street, 5th Floor, Columbus, OH 43215] Aggravated Burglary: Formation of intent to commit criminal offense during trespass after State v Fontes (2000), 87 Ohio St. 3d 527. By: John Heinkel, Hardin County Prosecutor's Office The Third District Court of Appeals, in affirming Fontes's 1997 rape and burglary conviction, found that the trial court correctly instructed the jury that Fontes was not required to possess the intent to commit a criminal offense prior to trespassing in an occupied structure, but could form the requisite purpose while the trespass was in progress. The Third District found its decision to be in conflict with decisions from the Fourth1 , Eighth2, and Tenth District3 Courts of Appeal and certified the issue to the Ohio Supreme Court. The Ohio Supreme Court affirmed both the ruling and rationale of the Third District Court. The Court agreed with the appellate court that the decision in State v Powell (1991), 59 Ohio St. 3d 62, that "[t]he crime of aggravated burglary continues so long as the defendant remains in the structure being burglarized because the trespass of the defendant has not been completed[,]" id. at 63, was instructive on the issue of the "on-going" nature of the trespass. The Ohio Supreme Court held that for purposes of defining the offense of aggravated burglary pursuant to RC 2911.11, a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass. Fontes, at 530. The Court explicitly rejected the contra holdings in the Fourth, Eighth, and Tenth Districts. 1 State v Lewis (1992), 78 Ohio App. 3d 518. [Fourth District reversed conviction, finding that a person who forms the purpose to commit a theft offense after the initial trespass is innocent of aggravated burglary]. 2 State v Waszily (1995), 105 App. 3d 510. [Eighth District reversed conviction because Waszily's intent, at the time of entry, was to see his baby daughter and to see if his fiancé was sleeping with another man. Subsequent "reprehensible intentions and actions" manifested themselves after the entry of the dwelling]. 3 State v Flowers (1984), 16 Ohio App. 3d 313. Tenth District affirmed conviction, but stated "The intent with which a person forcibly trespasses in an occupied structure is that which he had in mind at the time of entry, not one which he may have formed later, although what he does later may be indicative of his original intent." Id at 314.
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