News & Events

Six criminal decisions this week from the Fifth District with one win for the good guys (for those that haven't figured it out yet, we're a criminal defense firm, so that would mean a win for the defendant).  Five Civil, Five Domestic and Two Juvenile decisions as well.  Busy week.  But we do criminal here, so criminal cases….Away!

Mt. Vernon v. Young is an appeal from a DUI conviction after denial of a Motion to Suppress Evidence.  Based on an anonymous tip (that described Young and the vehicle she would be driving), the arresting officer tracked down and stopped Young for a headlight violation.  The officer noticed a moderate odor of alcohol, slurred speech and confusion coming from Young.  Young raised three assignments of error.  First, she alleged no reasonable suspicion to stop her vehicle.  Despite cruiser photos depicting the vehicle having two working headlights, the Court finds the headlight violation sufficient to justify the stop of Young (the officer said she must have turned on her high beams).  Second, she claims the breath test was not conducted in substantial compliance with the regulations promulgated by the Ohio General Assemble and Department of Health.  Based on the officer's testimony that he usually begins the twenty minute observation period after arrival at the station, the Court dismisses the video evidence showing Young put something in her mouth during the observation period and affirms the denial of suppression of the test.  Finally, she claims the search of her vehicle (that uncovered two bottles of vodka) was illegal.  The Court, analyzing whether there was error in denying suppression of the bottles, determines any error was harmless.  Judgment affirmed.

State v. Brewster is an appeal raising manifest weight and sufficiency assignments after conviction following a bench trial in the Coshocton County Common Pleas Court for one court of insurance fraud.  The Fifth finds the evidence insufficient because, under the terms of Brewster's policy, he paid the same deductible under the collision and comprehensive aspects of his policy.  The insurance company paid the policy despite believing he was making false statements.  Therefore, Brewster did not receive any benefit from his false statement.

State v. Rothe comes from the Fairfield County Common Pleas Court following a jury trial and convictions on several counts of a twelve count indictment.  Rothe raises two assignments of error.  First, he claims the sentence is unconstitutional.  Second, he claims the consecutive sentences for aggravated burglary and felonious assault are improper because the offenses are allied.  The Court uses Kalish to find the sentence is not contrary to law and is not an abuse of discretion.  Turning to the allied offense argument, the Court finds the elements of the offense sufficiently dissimilar that separate penalties may be imposed.

From the Richland County Common Pleas Court comes State v. Hopkins, an appeal from a conviction for Failure to Comply (F3).  On appeal, Hopkins claims the trial court should not have entered a finding of guilt on the F3, but rather should have reduced the charge because Hopkins created no risk of harm to anyone but himself.  That is sufficient according to the Fifth (and other districts).  In this scenario, this enhancement makes no sense to me.  If you’re going to run from the police, there is almost no scenario where you won't cause a substantial risk of physical harm to yourself; the officer can always try to ram you off the road.  In order to keep my head from exploding, the Fifth adds in the two other vehicles that happened past the appellant traveling the opposite direction during the initial stages of the pursuit.

A return to Richland County brings us to State v. Caudill where Caudill was convicted, after a bench trial, of Burglary (F4) and Negligent Assault (M3) in the Common Pleas Court.  A custody battle gone wrong, Caudill arrived at the CW's home claiming it was his day to have custody and refusing to leave without his children.  After forcing entry and removing the boys from the house, Caudill placed them in his vehicle.  While the CW, leaning into Caudill's vehicle, was reassuring the boys everything would be ok, Caudill started to drive off at a high speed, the CW was caught in the door of the car and dragged about 100 feet.  Caudill was indicted for Burglary (F2), Felonious Assault (F2) and Aggravated Menacing (M1).  Upon his conviction, Caudill raises weight and sufficiency arguments to his convictions.  Regarding the Burglary (F4) conviction, Caudill claims, without citing authority, that he had a privilege to force entry into the house because his children were inside.  No, says the Fifth, you can't force your way into someone's house to take your children away in this scenario.  Caudill also claims the State failed to prove, on the Negligent Assault count, that he deviated from the standard of care in failing to perceive his actions caused a risk of harm to the CW.  Not so, says the Fifth.  If your rear car door is open and a person is leaning in, you really shouldn't be putting the car in reverse and stamping on the gas pedal.  Some might say Caudill is lucky he's not on a brown bus heading to Orient, Ohio.  Others may say, hell no, those are my kids and I will run over a thousand grandpas to get to them.  The Fifth seems to fall into the former category.

After traveling North a bit, we come to State v. Foy from the Stark County Common Pleas Court.  A pro se appeal from the trial court's denial of a Motion for Re-Sentencing.  Foy's fourteen year sentence for Aggravated Robbery with Firearm Specification, Having Weapons Under Disability and Carrying a Concealed Weapon were previously affirmed by the Fifth.  More specifically, Foy claims, under State v. Pelfrey that the verdict forms were defective for failing to state the level of the offense.  The Fifth, without ever addressing the merits of his claim, finds the matter should have been raised on direct appeal, it was not and, therefore, res judicata bars his claim now.  I bet Foy really hates Latin right about now.