 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SENTENCING: FINDINGS MUST BE VERBALIZED DURING SENTENCING HEARING. State v. Nyel, No. C-020640, (1st Dist. Ct. Apps., Hamilton Co., 9-19-03). Ioana Nyel entered guilty pleas to two counts of rape and one count of felonious assault. Having hid in the bushes at a pubic park until a female jogger passed, Nyel dragged her to a creek, raped her, and strangled her until he thought she was dead. The court imposed maximum consecutive sentences and found the defendant to be a sexual predator. On appeal, appellant claimed the facts failed to justify maximum, consecutive sentences and that the evidence was insufficient to show that the defendant was a sexual predator. Conceding that the rape was not a "nice rape" (the court's quotation marks), appellant argued he was not a sexual predator because he had no prior convictions for sexual offenses. Remarking upon the defendant's having stalked his victim and the cruelty of the attack, the court quickly rejected that argument. The court held that consecutive, maximum sentences were justified. However, the trial court had said at the sentencing hearing only that the crime was the worst form of the offense. The trial court failed to orally make the findings to support consecutive sentences, making those findings in the sentencing entry only. Relying on State v. Comer (2003) 99 Ohio St. 3d 463, the appellate court reversed and remanded. In Comer, the Ohio Supreme Court held that findings "on the record" means the trial court must make its findings orally at the sentencing hearing. The appellate court remanded for re-sentencing. EXCITED UTTERANCE: DETERMINING WHETHER THREE-YEAR-OLD STILL UNDER INFLUENCE OF STARTLING EVENT DISCRETIONARY WITH TRIAL COURT. State v. Siler, No. 02COA 028 (5th Dist. Ct. Apps., Ashland Co., 10-24-03). Brian and Barbara Siler had been married for several years before they were able to conceive a child. The marriage, which had been troubled, improved temporarily after the baby, a boy named Nathan, was born. However, by the time Nathan was three-years-old, the marriage had deteriorated. Brian Siler was controlling and subject to temper tantrums. Barbara Siler had a short affair with a co-worker. The affair had ended several months before her death. Although Brian Siler opposed a divorce, he had become obsessed about his wife's affair. He talked about it constantly to everyone. Arguments between the couple escalated. Law enforcement officers responded to 911 calls three times in the three months before Barbara Siler died. Brian Siler was charged with domestic violence for choking his wife. Barbara Siler obtained a protective order and Brian moved into the nearby home of his brother, Kevin Siler. Barbara Siler changed the locks on her house and filed for divorce. On September 19, 2001, Barbara Siler, her son Nathan, and her life-long friend Terrie Cato went to the Ashland County Fair. Several friends and family members described Barbara Siler as being upbeat and looking forward to her new life. Terrie drove Barbara and Nathan Siler home at about 9:30 p.m. Brian Siler spent that evening watching a football game with his brother. At about 9:30 p.m., Brian retired to his bedroom and closed the door. Kevin Siler went to bed at about 12:30 a.m. Kevin's wife, also named Barbara, came home from her late-shift job at about 1:30. She worked on her computer until about 4:00 a.m. Brian Siler spoke to her briefly at 3:00 a.m., on the way back to his bedroom from the kitchen. Shortly after Mrs. Kevin Siler went to bed at 4:00 a.m., she heard "clunking" from Brian Siler's room. When she awoke in the morning, both Brian and Kevin Siler were gone. On September 20, 2001 employees at the accounting firm where the victim worked called her father because she had failed to arrive at work. The victim's father went to her home where he found that the door into the garage had been kicked in. The door to the attached house was open. His daughter's van was in the garage, the driver's door open. The victim's father went into the yard immediately, without seeing his daughter's body hanging from the metal supports of the garage door. Ashland County Deputy Singleton found Barbara Siler's body. She wore night clothes. Although her heels were elevated an inch from the garage floor, her toes touched the ground. A yellow nylon rope encircled her neck. The other end was tied to the supports for the garage door. Deputy Singleton found Nathan Siler asleep in his bed. He took him outside where his grandfather waited. Nathan pointed toward the garage and said, "Find Mommy." When Detective Larry Martin arrived, he spoke to Nathan. Responding to Detective Martin's question whether anything had scared him, Nathan said "Daddy did." Nathan said Daddy had hurt Mommy in the garage. Because Nathan was hungry, Detective Martin let Terri Cato take him for breakfast. When Nathan returned, Detective Martin asked more questions. Detective Martin, used a female social worker to demonstrate how Daddy might have hurt Mommy. When Detective Martin put his arms around the social worker's shoulders, Nathan said "up." Detective Martin moved his arms to the social worker's neck and Nathan said "yes" and started to cry. The detective allowed Nathan to run around the yard whenever Nathan wanted. Therefore, almost two hours passed between the time that Detective Martin arrived and the time the detective finished talking to Nathan. During most of the interview, Nathan seemed composed and quiet. However, he continued pointing toward the house and asking for Mommy. Barbara Siler died from cervical compression, which happens most often when force is exerted to the front of the person's neck. The coroner opined that she was dead before her body was suspended. She also had bruises all over her body, including her vaginal area. When Deputy Singleton went to Kevin Siler's home to talk to Brian Siler, he saw red marks on Brian's hands and scratch marks on his neck and chest. The grand jury indicted Brian Siler on aggravated murder with death penalty specifications, domestic violence from the earlier incident, and child endangerment. After returning guilty verdicts on all counts, the jury recommended death. The trial court, however, imposed a sentence of life without parole. On appeal, appellant argued, among other things, that the trial court erred in admitting Nathan's statement. Appellant argued that Nathan was calm, that the questions were suggestive, and that too much time had passed. The Ashland County Court of Appeals rejected appellant's arguments, saying the following at 13, Paragraph 55: "We agree with the state's assertion that a small child who has witnessed his mother's death is unlikely to quickly overcome the shock. Based on our review of the record, we find that the trial court acted within its discretion in its implicit conclusions that Nathan was still under the stress of the previous night's domestic violence and the grisly scene in the garage." The court affirmed the convictions. EXPERTS: PROVING INTOXICATION; STRICT COMPLIANCE WITH OHIO DEPARTMENT OF HEALTH REGULATIONS REQUIRED. State v. Mayl, No. 19549 (2nd Dist. Ct. Apps., Montgomery Co., 9-26-03) The grand jury indicted John Mayl for causing the victim's death "... as a proximate result of committing a violation of division (A) of Section 4511.19 of the Revised Code ..." He argued below that the blood alcohol test results were not admissible because they were not taken in strict compliance with Ohio Department of Health regulations. The state argued that strict adherence might be necessary in a driving-under-the-influence prosecution, but not for a homicide prosecution based on his drunk driving. The trial court agreed and found substantial compliance with the regulations. The court of appeals reversed; finding that the cases the state relied on related to an earlier version of the statute. Under the current version, the court held, the state must show strict adherence to regulations governing the taking of blood, breath, or urine. This is so, even if the state wishes to admit the blood alcohol results in order to support an aggravated vehicular homicide prosecution that is based on a violation of 4511.19(A)(1), which does not depend entirely upon a prohibited blood, breath, or urine alcohol content. [Ed Note: The above synopsis courtesy of Carly Ingram, Chief Counsel, Appellate Division, Montgomery County Prosecutor's Office]. ROBBERY: FORCE, IMMEDIATELY AFTER. State v. Frunza, No. 82053, (8th Dist. Ct. Apps., Cuyahoga County, 9-11-03) As Takyana Frunza was leaving a Family Dollar Store in Cleveland, the store's assistant manager, Bobbie Palmentera, asked to look under a blanket in the stroller Ms. Frunza pushed. Ms. Frunza refused and pushed the stroller over Ms. Palmentera's feet. Ms. Frunza lifted her child from the stroller and tried to leave. Ms. Palmentera, unintimidated, stood in the doorway as Ms. Frunza pushed her from the front and a companion of Ms. Frunza's pulled her hair from the back. The opinion omits the method, but somehow the intrepid Ms. Palmentera got Ms. Frunza and the stroller into the store's office. There she discovered $21.00 in baby supplies under the blanket. When Ms. Frunza asked to leave, Ms. Palmentera told her she would have to wait for the police. Ms. Frunza became angry, hit Ms. Palmentera, and tried to force her way past other employees. She failed. Convicted of robbery under R.C. 2911.02(A)(2), appellant argued on appeal that the evidence was insufficient to prove that appellant "inflicted, attempted to inflict, or threatened to inflict physical harm on another." The appellate court agreed that the first encounter, while it would have proved the element of "force" under R.C. 2911.02(A)(3), failed to prove R.C. 29911.02(A)(2). However, the court continued, Frunza's hitting Ms. Palmentera established the elements under R.C. 2911.02(A)(2). Appellant argued that her attack on Ms. Palmentera was not "immediately after" the theft offense. The court rejected that argument and affirmed the conviction. JURY MATTERS: JUROR DISAGREES WITH LAW. VERDICT VALID. State v. Frunza, supra When the court polled the jury, the first juror responded that "she is guilty of robbery but we don't understand the law. To me it would be shoplifting." Having polled the rest of the jury, the court returned to the first juror who said "because the way the law is written, she is guilty." Appellant argued this juror dissented and the court should have ordered further deliberations or discharged the jury. The appellate court disagreed. SEARCH AND SEIZURE; INVESTIGATIVE: SUSPECTED DRUG ACTIVITY JUSTIFIES PAT-DOWN FOR WEAPONS. State v. Bush, No. 19668, (2nd Dist. Ct. Apps., Montgomery Co., 8-29-03) Deputy Sheriff Brad Daugherty, in a marked cruiser, tried to talk to a person he believed was acting suspiciously. The unnamed person ran. When Deputy Daugherty caught the person, he found a phone number for a man named "Dray." The unnamed person told Deputy Daugherty that Dray sold cocaine. Deputy Daugherty called the number and tried to buy cocaine from Dray. Dray was out of town but gave the name of another supplier named "Block." After some changes of plans and locations, deputies removed "Block," who turned out to be Derek Deshart Bush, from a car. During a pat-down, Deputy Daugherty felt what he knew to be crack cocaine in the crotch of Bush's pants. Asked what it was, Bush said "nothing." The deputy pushed the crack until if fell from Bush's pant's leg. Bush argued that the deputy lacked articulable suspicion to believe that Bush was "Block." Failing that, the defendant argued the deputy lacked reason to believe that Bush carried a weapon. Finally, Bush argued that the criminal nature of the crack cocaine was not apparent until the deputy manipulated the crack. Otherwise, Bush reasoned, why would the deputy have asked "what is this?" The question, the appellate court said, did not necessarily negate the deputy's testimony that he knew immediately that what he was feeling was crack cocaine. Moreover, the court held there was reason to search for a weapon, saying the following: "Due to the recognized nexus between drugs and weapons, it was reasonable for Deputy Daugherty to pat Bush down for weapons." The court affirmed the conviction on the defendant's no-contest plea for possession of crack cocaine.
|
