 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEARCH AND SEIZURE: ANONYMOUS TIP; INVESTIGATIVE STOP. State v. Dickerson, No. 02-LW-022 (6th Dist. Ct. Apps., Erie Co., 2-1-02). The state appealed from the trial court's having granted the defendant's motion to suppress evidence. A Sandusky police officer responded to an anonymous report that a black man wearing baggy pants and a yellow jacket was looking into the windows of houses. About a block from the designated homes, the officer saw Todd Dickerson, a black man wearing baggy pants and a yellow jacket, walking on the sidewalk. The officer stopped and asked to speak to Dickerson, who kept walking. A second officer arrived and asked to speak to Dickerson. Dickerson walked away backwards looking at the officers. Ignoring the officers' request to remove his hand from his pocket, Dickerson kept walking, saying nothing. One of the officers grabbed Dickerson's hand, and Dickerson hit the officer several times. After the officers subdued and handcuffed Dickerson, they patted him down as he lay on the ground. When Dickerson rolled over, the officers discovered a bag of crack-cocaine beside him. Police charged Dickerson with possession of crack-cocaine. The trial court, finding that the anonymous tip failed to justify an investigative stop, granted the defendant's motion to suppress evidence. The state appealed and the appellate court reversed. The court held that the officers' verifying the clothing and that the suspect's conduct thereafter justified the officers' asking him to remove his hand from his pocket. When the officer grabbed his hand and Dickerson hit the officer, there was a lawful seizure. The court reversed and remanded for trial. SENTENCING: STATE'S APPEAL State v. Shiffler, No. L-01-1272 (6th Dist. Ct. Apps., Lucas Co., 1-11-02). The state appealed the court's sentencing. Michael Shiffler was indicted on two counts of rape of a child under thirteen and one count of gross sexual imposition. Shiffler entered no contest pleas to each count, two first-degree felonies and one third-degree felony. The court imposed a three-year sentence on each count, to be served concurrently. The victim was the defendant's daughter. The defendant had prior convictions on sexual charges and was on probation for non-support. The state argued on appeal that the sentence was too short to protect the public. The Lucas County Court of Appeals found by clear and convincing evidence that the trial court's sentence was unsupported by the record. The court held that the trial court had misinterpreted or failed to read the pre-sentence investigation report, which recommended a total of six years. The court held that, although a trial court need not accept the recommendations in a pre-sentence report, the court must consider those recommendations. The court reversed and remanded for re-sentencing. SENTENCING: TRIAL COURT MAY NOT INCREASE SENTENCE AFTER REVOKING JUDICIAL RELEASE. State v. Darthard, Nos. 01AP-1291, 1292, 1293 (10th Dist. Ct. Apps., Franklin Co., 8-13-02). Ricky Darthard entered guilty pleas to three drug charges, involving possession of cocaine on three days. The court sentenced him to consecutive terms of twelve months, six months, and six months. After serving part of his sentence, the defendant filed a motion for judicial release. The court granted the defendant community control. Six weeks later, the probation department asked the court to revoke the defendant's judicial release, as he was using cocaine. The court revoked judicial release and imposed sentences greater than the original sentences. The defendant appealed and the Franklin County Court of Appeals reversed. Ohio Revised Code section 2929.20 allows a court to "reimpose the original sentence on a defendant who violates community control after serving part of his sentence and being granted judicial release." Revised Code 2929.15(B) applies, the court continued, only when a defendant is granted community control immediately upon conviction. If a defendant then violates community control, a court may increase the sentence. The appellate court reversed and remanded for re-sentencing. EVIDENCE: AUTHENTICATION, COMPUTERS, WEIGHT. State v. Cook, No. 19061 (2d Dist. Ct. Apps., Montgomery Co., 9-13-02). While Brian Cook was away at a computer seminar, his wife's brother, Brian Brown, whom Mrs. Cook had invited to visit, found on Cook's computer 14,000 pornographic pictures of pre-teen children. Mr. Brown gave to the Kettering police 2 diskettes copied from Cook's hard drive. Kettering police seized Cook's three computers pursuant to a search warrant. Cook was indicted for possession and reproduction of child pornography. His motion to suppress evidence having been overruled, Cook attacked the authenticity of the evidence introduced. The police had taken the computer to a company in Dayton called I.S.I. That company made a "mirror image" of Cook's hard drive and transferred it to another hard drive. The purpose of making the duplicate was so that police could investigate the photos without contaminating the original evidence. Using a software program called Encase, Detective Driscoll, who had been trained in the process, generated a voluminous report detailing everything on the copied hard drive. At trial, Cook claimed the state had failed to establish the reliability of the "mirror image" copy or the accuracy of the dates attached to the photos. The court overruled his objection. Cook was convicted and he appealed. The Montgomery County Court of Appeals held that the state's foundation was sufficient to allow admitting the evidence. Any questions about the process, the court continued, were relevant not to admissibility but to the weight of the evidence. The court affirmed.
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