 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
OTHER ACTS: COURT PROPERLY EXCLUDED EVIDENCE OF ANOTHER SHOOTING WHEN DEFENDANT INDICTED FOR MURDER FAILED TO SHOW A CONNECTION BETWEEN THE OTHER SHOOTING AND THE MURDER WITH WHICH HE WAS CHARGED. State v. Walker , No 2005-CA-00286, (5th Dist. Ct. Apps., Stark Co. 11-27-06), 2006 Ohio 6240. Steven Walker was charged with one count of murder and one count of carrying a concealed weapon. Walker belongs to a Canton gang called the "Rated." The victim and some friends, who belonged to a gang called the "Northwest Shorb Block" made the mistake of stopping at a store located within the territory of the "Rated" gang. An argument ensued. The Shorb members ran from the store, as Walker chased them, his gun blazing. A Shorb member, Michael Cheek, died. Twenty-eight minutes before the shooting, another shooting happened nearby. Someone fired shots at Glenn Carter as Mr. Carter sat on his porch. Walker sought to introduce evidence of that shooting. He claimed the purpose was to show that, contrary to their testimony, the victim's friends were also armed and fired at Walker. Walker argued that the bullet that killed Mr. Cheek might have been fired by one of the victim's friends. However, Walker was unable to show any evidence connecting the shot fired at Mr. Carter thirty minutes before the murder to any of the victim's friends or to the murder. A possible ground to suspect someone else, the appellate court said, is insufficient. The trial court excluded the evidence. Having been convicted as charged, Appellant argued the court erred in excluding the evidence. The appellate court disagreed. What has sometimes been called "reverse other act evidence," may sometime be admissible if the defendant argues that he has been mistakenly identified. In the instant case, the appellate court held, the evidence of the two shootings was unrelated and would have merely confused the jury. The appellate court affirmed the conviction.
INDICTMENT: AMENDMENT FROM 2911.12(A)(2) TO 2911.12(A)(1) ACCEPTABLE; PHARMACY AND PHARMACY SAFE WERE SEPARATELY SECURED PORTIONS OF OCCUPIED STRUCTURE. State v. Bell, No. 05-CA-67 (5th Dist. Ct. Apps., Fairfield Co., 12-4-06), 2006 Ohio 6560. The Fairfield Grand Jury indicted Larry Bell on one count of attempt to commit burglary under R.C. 2911.12(A)(2), one count of attempt to commit theft of drugs under R.C. 2913.02(A)(1) and one count of possession of criminal tools. The state filed a motion to amend the indictment to change from R.C. 2911.12(A)(2), which requires that the occupied structure be a permanent or temporary habitation, to 2911.12(A)(1), which contains no such provision. The original indictment was, the prosecutor told the court, a typographical error. The day after the court granted the motion, a jury trial began. While incarcerated in the Southeastern Correctional Institution, Larry Bell and another man were cleaning a small room in the infirmary known as the optometrist's room. While the assigned prison guard who was in another area of the infirmary, a nurse told him of strange noises coming from the optometrist's room. When the guard returned, he found Bell standing on a desk with nothing in his hands and the other inmate standing at the door. Bell told the guard he was cleaning the vent above the desk. Finding nothing amiss, the guard had the men leave the optometrist's room, which he then locked. Returning the next day, the guard found a small hole in the concrete wall that had been covered by an aquarium, two large trash cans and several heavy blackboards. On the other side of the wall where the hole was is the drug safe of the infirmary. The infirmary is a separate locked room. The other inmate, David Hicks, told a trooper that Bell had been planning for two weeks to steal drugs from the infirmary. At trial, Hicks recanted that statement and testified that Bell was only cleaning the vent. Another guard overheard Bell saying "Yeah I did, but not that night. That night I was only cleaning the vents." The jury convicted the defendant of the indicted charges. On appeal the appellant argued that the amendment violated Crim. R. 7. The appellate court disagreed, holding that changing from one subsection to another changed neither the name nor nature of the charge. Moreover, the court continued, the appellant always knew the nature of the charge against him. The court also held that the locked drug safe was a separately secured portion of the pharmacy. The court remanded for re-sentencing under State v. Foster (2006), 109 Ohio St.3d 1, but otherwise affirmed.
SPEEDY TRIAL: IF THE LAST DAY OF TIME IS ON A SATURDAY, THE TIME EXPIRES ON THE FOLLOWING BUSINESS DAY. State v. Johnson, No 21381, (2nd Dist. Ct. Apps., Montgomery Co., 9-8-06). The state appealed from the trial court's dismissing an indictment charging Calvin Johnson with aggravated riot. The trial court made detailed findings about each period of time at issue. The trial court concluded that the trial date was two days over the 270-day-limit and dismissed the indictment. The state appealed. Using the trial court's own calculations, the state showed that the 270th day fell on a Saturday. Crim. R. 45(A) provides that the last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day, which is not Saturday, Sunday, or legal holiday." The appellate court reversed and remanded. [Ed. Note: the opinion fails to explain why the trial court made such an obvious mistake. However, the way the court set forth the various time periods, accounting for the defendant's being in or out of jail and motions filed by the defendant, suggests that the trial court may have simply added days without consulting a calendar.]
SPEEDY TRIAL: DAY OF ARREST NOT COUNTED; TIME HELD IN OHIO PRISON TOLLS TIME UNDER R.C. 2945.71. State v. Stewart, No. 21462, (2nd Dist. Ct. of Apps., Montgomery Co., 8-11-06). The state appealed from the trial court's granting the defendant's motion to dismiss his indictment for failing to bring him to trial with 270 days on a charge of tampering with evidence. There were two relevant time periods: The day of arrest, August 18, 2004; and the period between August 31, 2004 and January 26, 2005, when the defendant was in prison on an unrelated charge. The trial court charged three days against the state for August 18, 2004, and charged one day against the state for each of the days between August 31, 2004 and January 26, 2005. The Montgomery County Court of appeals held that the trial court erred in charging the day of arrest against the state. The opinion fails to explain its holding, simply citing State v. Cline, Champaign App. No. 2002-CA-05, 2003 Ohio 4712. The reason, cited in many cases over the years, that a defendant not only fails to get credit for three days for the day of arrest (even though he spends the night in jail) but also fails to get credit for even one day is found in Crim. R. 45, providing that when time is computed, the first day is excluded and the last day is included. The court also held that the trial court erred in giving the defendant credit for the time the defendant was in prison. The court said that the majority of Ohio courts hold that R.C. 2941.401, a specific statute, controlled over the general speedy trial statute. Under R.C. 2941.401, a defendant held in prison must be brought to trial within 180 days after he has caused a request for trial to be served on the prosecuting attorney. As the defendant in the instant case failed to serve notice, the 180 day rule was inapplicable. Two members of the court would say the time the defendant was in prison tolled the running of the time for trial under 2945.71. The majority cited several recent cases from other districts interpreting R.C. 2941.401, as controlling over R.C. 2945.71 and reluctantly followed those cases for the sake of uniformity. Judge Grey disagreed. He would hold that the time continued to run while the defendant was in prison. However, Judge Grey concurred in the result because excluding the three days that the trial court had counted for the day of arrest brought the trial within the 270 day-period. [Ed. Note: Beware the circumstances in State v. Carter (June 30, 1981), Franklin Apps. No. 80AP-434, unreported, in which the defendant has not been served with an indictment and, therefore, need not file a request to benefit from R.C. 2941.401. Although only an unreported county case, many Ohio courts follow it.]
SENTENCING: DEFENDANT NEED NOT RAISE FOSTER ERROR AT TRIAL. State v. White, No 2005-CA-36, (2nd Dist. Ct. Apps., Champaign Co., 9-1-06). Todd Alan White, a registered sex offender, failed to report a change of address. The trial court convicted him of violating R.C. 2950.05(A), and (E)(1) and imposed a sentence greater than the minimum. Although the defendant had failed to raise the sentencing issues under Blakely v. Washington and State v. Foster at trial, he raised the issue on appeal. The Champaign County Court of Appeals rejected the State's position that appellant had waived the error by failing to raise it at trial. The case of State v. Foster, the Champaign County Court of Appeals held, established a bright-line rule that required re-sentencing of all defendant's whose cases had been pending when the court decided State v. Foster. The court remanded the case for re-sentencing. [Ed. Note. The Franklin County Court of Appeals has reached the opposite conclusion about waiver.]
SENTENCING: TRIAL COURT LACKS JURISDICTION TO RULE ON MOTION TO WITHDRAW GUILTY PLEA AT RE-SENTENCING HEARING. State v. Bogan, No. 87259, (8th Dist. Ct. Apps., Cuyahoga Co. 7-27-06), 2006 Ohio 3842. James Bogan entered guilty pleas to four counts of gross sexual imposition. The appellate court remanded the case for re-sentencing. Bogan filed a motion to withdraw his guilty pleas, which the trial court denied. Bogan appealed, arguing that his motion should have been judged by the liberal pre-sentencing standard, as his sentence had been vacated. Relying on State ex rel special Prosecutors v. Judges (1978), 55 Ohio St. 2d 94, the Cuyahoga County Court of Appeals affirmed. As the appellate court had upheld the defendant's conviction but remanded for re-sentencing only, the appellate court said, the trial court lacked jurisdiction to grant the defendant's motion, because the first appellate opinion controlled.
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