News & Events

Vacation means the Fifth District Summary has fallen behind.  Three trials in the next two weeks means it may fall a little more behind.  Sorry for the inconvenience.  If you have an issue with pre- or post-indictment delay in bringing prosecution you should really read Jenkins.  The rest are, of course, enjoyable as well.  To the cases...

 

State v. Colopy is an appeal from the Licking County Common Pleas Court.  The Fifth affirms the denial of Colopy's Motion to Suppress Evidence resulting from an "inventory search" of her vehicle.  Colopy was present when her co-defendant shop lifted.  No stolen items found on Colopy.  Nevertheless, police track down her vehicle in the parking lot and find the tag is expired.  Officer decides he's going to impound the vehicle when Colopy declines to give consent to search.  During the search, officers discover a can of Red Bull that is, "warm and was unusually heavy."  The can (which was searched) contained drugs.  The inventory was a valid search as was opening the can because Health PD has a policy of opening all packages found inside a car during an inventory and the officer considered the can of Red Bull a package.

 

State v. Fogle comes from the Licking County Municipal Court.  Fogle was convicted of Domestic Violence for biting his wife's finger as she wagged it in his face while telling him she was breaking up with him, cheating on him and, by the way honey, please roll me some cigarettes.  First, Fogle claims the jury was not properly impaneled when the verdict was returned (this seems to be a problem in Licking County Municipal Court).  While the written transcript fails to mention the jury's return, the video shows the jury was present when the verdict was read.  Next, Fogle claims ineffective assistance of counsel based on trial counsel's failure to object to the absence of the jury.  See assignment of error number one for the result of number two.  Finally, Fogle claims the conviction is against the weight of the evidence.  In a he said, she said battle royale (complete with divorce pending) such as this one, the Fifth isn't going to overturn a verdict.  Affirmed.

 

State v. Marshall comes from the New Philadelphia Municipal Court.  Marshall was convicted of violating a civil protection order.  Following a bench trial, the court sentenced Marshall to 180 days in jail (ouch).  Marshall appeals raising weight and sufficiency arguments as well as arguments that hearsay evidence was improperly admitted and a child witness was not competent to testify.  Marshall claims he didn't know Danford (the protected person) was nearby.  Marshall admits he was at the gas station next to the domestic violence shelter Danford was staying at, but denies he knew she was staying there.  The Fifth doesn't buy it.  Turning to the hearsay statement and competency issues, the Fifth finds error, but further finds it harmless.  Which is interesting in light of the fact that the Fifth says, "[c]learly the statement was presented on a pivotal issue of the case and was offered for the truth of the matter asserted."  Despite the fact that the testimony was objected to, the Fifth conducts a harmless error analysis and finds the error in admitting the testimony was just that.  So improperly admitted evidence on a "pivotal issue" is harmless error.  Ok.

 

State v. Brown comes out of Richland County Common Pleas Court where Brown, pro se appeals the trial court's denial of a motion for resentencing.  Brown claims failure of the jury verdict to specifically state the level of offense.  Brown claims his sentence is, therefore, void.  The Fifth disagrees.

 

State v. Hagedorn reverses the decision of the Stark County Common Pleas Court.  The trial court applied SB10 to Hagedorn's registration.  The Fifth finds his registration requirements expired on May 7, 2007.  Being before SB10 took effect, reclassification of Hagendorn was improper.  Reversed.

 

State v. Wood appeals the Stark County Common Pleas Court in another SB10 classification and affirming the trial court this time.  First, Wood claims his classification is illegal because it was essentially a retroactive resentencing.  The Fifth rejects the argument finding SB10 classification is civil in nature and arises by operation of law.  Next, he argues he should not be classified because he was married to the alleged victim and as a step-parent should not be classified (Wood was convicted of kidnapping a six year old, there is no indication in the opinion that this was, in fact, a sex offense).  Because the "guardian", "person in loco parentis", ect. language isn't included in the statute, the legislature intentionally excluded it and he should not receive the benefit.  Wood's third assignment of error was not raised in the trial court level, so it is reviewed for plain error.  The Court conducts plain error analysis and rejects the claim.  Finally, Wood claims his classification is improper because the trial court never determined whether he was community notification exempt.  The statutory language being permissive and Wood having never requested a hearing, Wood cannot argue the trial court abused its discretion in not holding a hearing or explicitly making the determination.  Affirmed.

 

State v. Lambert appeals the Licking County Municipal Court's conviction on OVI and Failure to Control after a jury trial.  Lambert raises two assignments of error.  First, she claims the jury was not properly impaneled before the verdict was read.  The issue was not objected to by trial counsel, so plain error analysis applies.  Because the trial court asked Lambert if she wanted the jury polled, the Fifth presumes the jury was present when the verdict was read and overrules the first assignment of error.  Second, she claims ineffective assistance of trial counsel for failing to object to inadmissible evidence, inflammatory remarks by the prosecutor and acceptance of the verdict.  First, regarding the alleged hearsay, the persons making the statements testified, so no problem with the officers testifying to what they said.  Because the evidence was so overwhelming, the possibly inflammatory, improper remarks were not prejudicial.  Finally, because there was no error in the rendering of the verdict, no IAC for failing to object.  Affirmed.

 

Out of Guersey County Common Pleas Court comes State v. Hodge, an appeal from conviction for discharging a firearm at a prohibited premises and improper handling of a firearm in a motor vehicle.  Primarily, Hodge, a juvenile at the time of the offense, argues his sentence is disproportionate to sentences for similar crimes.  He even presented two cases where these charges resulted in a misdemeanor and a juvenile adjudication respectively.  The Fifth notes neither entry was moved into the record.  Further, the Court finds the sentence is not inconsistent.  Hodge next argues he was improperly sentenced based on his race, gender, religion or ethnicity.  Nothing about that in the record, though, so you know how far it gets.  Finally, he argues he should have received the minimum sentence.  But because the trial court considered the necessary factors, this argument also fails.

 

State v. Jenkins comes out of the Stark County Common Pleas Court raising speedy trial concerns for a fourteen year delay in brining Jenkins to trial.  Jenkins raises two assignments of error related to the speedy trial issue, failure of the trial court to consider his untimely motion to suppress statements and ineffective assistance of counsel.  After a lengthy discussion of how a defendant would show pre-indictment delay to be prejudicial (and finding no pre-indictment delay prejudice in this case), the Fifth agrees with Jenkins that the post-indictment delay was improper.  In conducting the Barker v. Wingo analysis, the Court focuses the bulk of its opinion on the reason for the delay.  The Court cites, with approval, United States v. Wilson for the position that failure to track down a defendant is "passive wrongdoing" attributing the delay to the State rather than the defendant who, in this case, moved to Texas.  Further, the Court, finds the statute of limitations was not tolled by Jenkin's relocation to Texas.  Repeatedly, the Court notes the State failed to make any attempt at finding Jenkins during the fourteen year period the case was pending.  This is a fantastic case for anyone who has a significant delay in brining a case to trial.

 

State v. Clay comes to us from Stark County Common Pleas Court as well.  Clay raises three assignments of error following his convictions after jury trial for burglary, retaliation and menacing by stalking.  In his first assignment of error, Clay claims the trial court abused its discretion by admitting into evidence the CW's written statement and Clay's prior misdemeanor convictions for trespass and assault against the CW.  The Fifth finds the statement was hearsay.  The only valid exception the Fifth could find is prior recollection recorded.  But under that rule the written statement is still inadmissible unless moved into evidence by the adverse party.  The Fifth then, in some brilliant legal maneuvering, finds that, because the CW was declared adverse by the trial court, she became aligned with the defense and the prosecution became the adverse party (even though the prosecution is the party who called her to the stand).  The Court then addresses the admission of the prior misdemeanor convictions and finds their admission proper as a pattern of conduct.  Next, Clay argues the trial court committed plain error by not giving a limiting instruction on the CW's statement.  We all know how well plain error analysis goes for criminal defendants.  Finally, Clay argues there was insufficient evidence to convict.  But when you consider that detailed, written statement by the CW and don't weigh the credibility of any of the witnesses, there is certainly enough to convict.  Affirmed.

 

Stark County was popular a couple weeks ago.  State v. Turnbow is out of the Common Pleas Court and appeals the resentencing after improper imposition of three years as opposed to five years of post-release control as part of his original sentence (imposed in 2004).  After conducting a new sentencing hearing, the trial court reduced Turnbow's original sentence by one year and imposed the proper amount of post-release control.  The State of Ohio is the appellant.  The case law being clear that a de novo sentencing hearing is proper, the reduction is okie dokie and the new sentence is within the proper range.  Affirmed.

 

And finally, from Stark County comes a writ of habeas corpus filed pro se in Hill v. Cook.  Mr. Hill is in Madison Correctional and the Fifth doesn't have jurisdiction over that area.  The Fifth also doesn't bother to give Mr. Hill a clue that Madison County is in the Twelfth District, but hey, they're not there to give advisory opinions, right?