 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: ARREST FOR MINOR MISDEMEANOR REASONABLE, WHEN. State v. Green, No. 19163 (2d Dist. Ct. Apps., Montgomery Co., 4-19-02). At 1:20 a.m. in a high crime area, a Dayton police officer saw Jason Greene stagger toward a car and try to get into the driver's seat. Believing Mr. Greene to be drunk, the officer asked him to "stop." Mr. Greene smelled of alcohol, slurred his words and said "I have been drinking and should not be driving." Mr. Greene's companion had no driver's license. A second officer drove the companion to a gas station where he would be safer. Because the first officer believed it would be unsafe to issue a citation and leave a severely intoxicated person in an unsafe area, the officer arrested Mr. Greene. Searching Greene persuant to arrest, the officer found crack cocaine. The trial court found that the officer's telling Mr. Greene to "stop" was an "arrest." The trial court further said that the officer lacked probable cause to arrest Mr. Greene until after he talked to him. The trial court suppressed both the statement and the evidence and the state appealed. The appellate court held that the officer had reasonable suspicion to investigate Mr. Greene's behavior. Telling a person to "stop," the court continued, is not always an arrest. Finally, R.C. 2935.26 provides an exception to the preclusion of arrest for a minor misdemeanor if "the offender requires medical care or is unable to provide for his own safety." The appellate court reversed and remanded for trial. SEARCH AND SEIZURE: EVIDENCE SEIZED AND STATEMENTS MADE AFTER BEING STOPPED FOR JAYWALKING ADMISSABLE, WHEN. State v. Martin, No. 19186 (2d Dist. Ct. Apps., Montgomery Co., 5-24-02). The state appealed from the trial court's granting the defendant's motion to suppress evidence and a statement. A Dayton police officer saw Tracey Martin jaywalking. Because the area was a high-crime area, the officer asked Ms. Martin to sit in his cruiser while he wrote a citation. He asked if she had anything he needed to be concerned about, such as "weapons, crack pipes, needles, drugs." She told him she had a crack pipe in a cigarette pack. He took the pipe and saw substantial residue inside. Miller was charged with possession of cocaine. The trial court granted her motions to suppress her statements and evidence of the crackpipe. Finding that the officer's question about drugs exceeded the scope of questioning that was reasonable to insure the officer's safety, the trial court found the officer had "verbally" exceeded the scope of a pat-down under Terry v. Ohio (1968) 392 U.S. 1. The trial court, therefore, concluded that the officer had arrested the defendant. As the questioning amounted to an arrest, the trial court said, the officer had to quote Miranda Warnings before asking the questions. The trial court's only problem was the officer's asking Martin about drugs. The trial court said that stopping the defendant, asking if she had weapons, and putting her in the cruiser were all acceptable. Only when the officer asked her about drugs, did the encounter become an "arrest." (Despite the officer=s telling Martin she would not be arrested). The Montgomery County Court of Appeals quickly disposed of the trial court's tautological reasoning. While calling the question about drugs "inappropriate" under the circumstances, the court held that the question failed to convert a non-custodial encounter into an arrest. The court reversed and remanded for trial. SEARCH AND SEIZURE: SEARCH PERSUANT TO ARREST. State v. Locklin, No. 19134 (2d Dist. Ct. Apps., Montgomery Co., 6-14-02). Police stopped Andrew Locklin for traffic violations. They soon discovered he had an outstanding arrest warrant. When stopped, Locklin alighted from his car and locked the doors. Police found this suspicious. Inside the car, police found cocaine. At trial, the court accepted the state's argument that the cocaine was discovered pursuant to an inventory. The appellate court, however, found it unnecessary to reach that issue. Instead, the court held that the officers could search the car pursuant to Locklin's arrest. The court relied on State v. Murrell (2002), 94 Ohio St. 3d 489, in which the Ohio Supreme Court overruled its infamous State v. Brown (1992), 63 Ohio St. 3d 349. In State v. Murrell, a majority of The Ohio Supreme Court concluded the court should adhere to the United States Supreme Court's decision in New York v. Belton (1981) 101 S. Ct. 2860. The Montgomery County Court of Appeals affirmed Locklin=s conviction. SENTENCING: COURT MAY CONSIDER DISMISSED COUNTS. State v. Williams, No. 19026 (2d Dist. Ct. Apps., Montgomery Co., 6-14-02). Micki Williams appealed a sentence of five-years community control on two counts of unlawful sexual conduct with a minor. She had originally been indicted for three counts, involving three boys of unspecified ages. She entered guilty pleas to two counts and the state requested a nolle prosequi on the third count. The trial court believed that, because she had victimized three boys, Ms. Williams should serve some jail time. Therefore, the court imposed a jail sentence of thirty days, in addition to the five-years of community control. Citing State v. Wells (1999) 133 Ohio App. 3d 392, the defendant argued on appeal that the court erred in considering the alleged conduct of the dismissed count. Citing State v. Wiles (1991), 59 Ohio St. 3d 71, the Montgomery County Court of Appeals rejected the defendant's agreement. SENTENCING: FINDINGS UNNECESSARY FOR JAIL SENTENCE. State v. Williams, supra. The defendant also agreed that the court could not impose a jail sentence on a first offender without making the findings required by 2929.14(B). The Montgomery County Court held those findings necessary only when the court imposes a prison term. Jail, the court said, is not prison. The court affirmed. EXPUNEMENT: COURT WITHOUT JURISDICTION, WHEN. State v. Marcus, No. 79768 (8th Dist. Ct. Apps., Cuyahoga Co., 3-7-02). The state appealed from the trial court's granting the motion of Gregory Marcus to seal the record of his conviction for aggravated assault. The state asserted it failed to receive notice of the hearing. The record before the appellate court contained no evidence of notice. The state neither appeared at the hearing nor objected to the motion in writing. The state raised two assignments of error: that the court erred by failing to give notice and that the court erred by sealing the record because aggravated assault is an offense of violence. The appellate court denied the first assignment of error but sustained the second assignment of error. The court said that because the record failed to affirmatively show that the trial court failed to give notice, the appellate court assumed that the trial court gave notice. [Ed. Note: the dog must have barked after all]. However, the court rejected the defendant's argument that the state had waived the right to appeal because it had failed to object. [Ed. Note: Franklin County adheres to the defendant's position]. The Cuyahoga Court held that a court is without authority to seal records when the offense in an offense of violence. Therefore, the court lacked jurisdiction to grant the motion. The court vacated the trial court's order. SEXUAL PREDATOR: RES JUDICATA INAPPLICABLE, WHEN. State v. Philpott, No. 79732 (8th Dist. Ct. Apps., Cuyahoga Co., 2-28-02). In 1984, Ottie Philpott broke into a home where the twenty-eight year old victim lived with her two children and her mother. He attempted to rape the victim but was foiled by the victim's mother. Having entered guilty pleas to aggravated burglary and attempted rape, he was sentenced to three years for a gun specification, twelve to twenty-five years for aggravated burglary, and eight to fifteen years for attempted rape. In April, 1997, the court sua sponte issued an order declining to make any finding on whether the defendant was a sexual predator. In January, 2001, the state requested that the defendant be adjudicated a sexual predator. Overruling the defendant's motion to dismiss, in which he argued that the court's earlier ruling precluded the state from re-litigating the defendant's status, the court found the defendant to be a sexual predator. The defendant appealed and the Cuyahoga County Court of Appeals affirmed. The appellant relied on State v. Dick, (2000), 137 Ohio Apps. 3d260. In that case, the trial court had dismissed the proceeding pending the Ohio Supreme Court's decision on the constitutionality of R.C. 2950.09. The state had failed to appeal. The appellate court found that the state, therefore, was barred by the doctrine of res judicata from asking to have the defendant adjudicated a sexual predator. In the instant case, the Cuyahoga Court said, the trial court had sua sponte announced it would decline to rule on a request, although the state had not yet filed a request. Therefore, the court said, the trial court's 1997 ruling created no right to appeal because it decided nothing that was at issue. The appellate court affirmed. [Ed. Note: None of the several cases that have addressed this issue have discussed what effect it has that being a "sexual predator" is a status subject to change. The theory of res judicata is that parties cannot relitigate issues that have been determined. But when the "issue" is a person's status, and that status is subject to change, the issue the party seeks to raise appears not to be the "same" issue.]
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