 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
BILL OF PARTICULARS: AGGRAVATED BURGLARY, OFFENSE DEFENDANT INTENDED TO COMMIT UNNECESSARY. State v. Rivers, No. 83321, (8th Dist. Ct. Apps., Cuyahoga Co., 5-20-04). Being charged with aggravated burglary, Desiree Rivers at the end of the state's case moved to dismiss the indictment because the state had failed to include in the bill of particulars the offense the state alleged she intended to commit inside the occupied structure. The trial court granted the motion and the state appealed. The defendant in chambers had orally "raised the motion prior to trial in pretrial chambers." Although the state apparently agreed that the defendant had moved to dismiss pretrial, the motion was not on the record and, therefore, the Cuyahoga County Court of Appeals held, the appellate court could not recognize the motion. Having failed to file a motion to dismiss on the record, the defendant waived any error in the bill of particulars. Because Crim. R. 12 requires a defendant to file motions to dismiss based on defects of the indictment before trial, the court continued, the trial court abused its discretion in considering the defendant's motion after the state's case. Moreover, the court said, the state is not required to state or prove the underlying offense to prove aggravated burglary. Therefore, the state need only prove, and the indictment and the bill of particulars need only state, that the defendant intended to commit "a criminal offense." The defendant could have obtained additional information, the appellate court continued, through discovery. The appellate court reversed and remanded for retrial. As the trial court had dismissed the case not under Crim. R. 29, but under Crim. Rules 12 and 48, the court observed, the double jeopardy clause permitted retrial. EXPUNGEMENT: COURT MUST HOLD HEARING AND GIVE NOTICE TO PROSECUTOR. State v. Harris No. 83391, (8th Dist. Ct. app. Cuyahoga Co, 4-8-04). The trial court granted Sylvester Harris' application to seal the record of his conviction for attempted drug abuse. Although the defendant's pro se motion said the prosecuting attorney had been served, nothing else in the record showed service. Nevertheless, the state filed an objection to the motion eighteen months later. Soon after, the court granted the motion for expungement without holding a hearing. The state appealed. The Cuyahoga County Court of Appeals reversed. R.C. 2953.32(B), the appellate court said, imposes a mandatory duty on the trial court to set a date for a hearing and notify the prosecuting attorney of the date. As the trial court failed to follow the mandate of the statute, the court abused its discretion in granting the motion. MOTION TO SUPPRESS: REASON TO BELIEVE SUSPECT ARMED, WHEN. State v. Martin, No. 20270 (2d Dist. Ct. Apps. Montgomery Co., 5-28-04). The state appealed from the trial court's granting the defendant's motion to suppress evidence in his trial for possession of crack cocaine. The facts found by the trial court are as follows: "From the evidence adduced at the hearing held on November 10, 2003, the Court finds the following facts. On August 23, 2003, Officer Williams responded to a 'knock and advise' at an apartment located at 211 South Wilkinson Street in Dayton. Officer Williams testified that another Dayton patrolman had been given a tip about possible drug activity at the apartment. Two additional officers accompanied Officer Williams to the apartment and they were let in and given consent to search the premises by the lessee. At the time, there were two people other than the lessee inside the apartment. During the search, no drugs or weapons were found. According to Officer Williams, cash was found on the bed. "Before the officers left, the Defendant walked into the apartment without knocking. Officer Williams testified that, upon seeing the officers, the Defendant appeared to be startled. The Defendant was wearing shorts and a t-shirt and no evidence of a weapon was visible. Two of the officers informed the Defendant that they were going to pat him down for officer safety. Officer Williams testified that, at this point, the Defendant was free to go. According to Officer Williams, he felt a hard object in the Defendant's pocket. At this point, the Defendant began resisting the officers and a struggle ensued. After the Defendant was subdued, the Defendant was searched and 8.93 grams of cocaine were found on the Defendant's person. No weapons were found. After the search, it was found that the Defendant had an outstanding capias warrant on a traffic violation." Although, finding the officers had reason to briefly detain Martin, the trial court found they had no reason to believe he was armed and, therefore, no reason to frisk him for weapons. The court granted the defendant's motion to suppress evidence. The appellate court reversed. Accepting that the "startled look" justified detaining the defendant, the appellate court held that the frisk was reasonable. It is common knowledge that persons engaged in drug trafficking and using drugs often carry weapons. Therefore, the frisk was reasonable to protect the officers' safety. The court reversed and remanded for further proceedings. INVOLUNTARY MANSLAUGHTER: PERSON WHO SELLS DRUGS TO ANOTHER, WHO THEN DIES AFTER DRIVING HIS CAR OFF THE ROAD, GUILTY OF INVOLUNTARY MANSLAUGHTER. State v. Uselton, No 03 COA 032 (5th Dist. Ct. Apps, Ashland Co., 5-12-04). Benjamin Whitney Uselton sold Xanax tablets to nineteen-year-old Adam Howell and sixteen-year-old Mike Roberts. The next night, Uselton sold more Xanax tablets to the two young men. Witnesses described Adam Howell, who was driving, as so under the influence of drugs he was staggering and falling down as he tried to walk. On the way home from the apartment where the boys bought the Xanax from Uselton, Adam Howell's car left the road and hit the stone foundation of a barn. The state's experts testified that the ground showed no signs of braking. Both Howell and Roberts died. The defendant was charged with two counts of involuntary manslaughter, causing the deaths in the course of committing the offense of trafficking in drugs; and three counts of trafficking in drugs. Having been convicted, Uselton appealed, arguing the evidence was insufficient to prove that he had caused the deaths. According to Uselton, the intervening cause of the driver's having ingested the drugs prevented defendant's conviction. The appellate court disagreed. The evidence showed that the defendant knew that Adam Howell was driving and that he was under the influence of drugs. It was foreseeable that Howell's being under the influence of Xanax would cause an automobile accident and that an accident could kill both boys.
TRIAL PROCEDURE: AUTHORITY OF COURT TO DISMISS INDICTMENT AIN THE INTERESTS OF JUSTICE@. State v. Daugherty, No. 03COA050 (5th Dist. Ct. Apps., Ashland Co. 4-19-04). The Ashland County Grand Jury indicted Robert Daugherty, a professional airplane pilot, on two counts of illegal processing of drug documents, and one count of possession of criminal tools. Over the objection of the prosecutor, the trial court granted the defendant treatment in lieu of conviction on one of the three counts and held the other two in abeyance. After the defendant completed the treatment in lieu of conviction program, the judge wrote a letter to the prosecutor asking him to dismiss the two remaining counts, on which the court could not grant treatment in lieu of conviction. When the prosecutor refused, the court dismissed the two counts, saying "no purpose would be served by prosecuting defendant on counts one and three." The state appealed and the Ashland County Court of Appeals reversed. Recognizing that Crim. R. 48 allows courts to dismiss charges under some circumstances, if doing so would be in the interest of justice, the court held the trial court abused its discretion in the instant case. Although the record is unclear, it appears that the trial court dismissed the charges so that the defendant could retain his pilot's license. The state argued that the defendant's being an airline pilot was a reason not to dismiss the charges but to prosecute the charges. A person with a drug problem should not be flying airplanes. The appellate court held that dismissing the indictment was not "in the interests of justice." The court reversed and remanded for trial. [Ed. Note: On remand, the trial court dismissed the charges again and the state appealed again. That appeal is pending].
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