Fifth District Summary: December 8, 2014

State of Ohio vs. Timothy A. Moss: Timothy A. Moss was found guilty of trafficking heroin and having weapons under disability. The trafficking violation had a specification for proximity to a school and a forfeiture specification of $43,100 in cash found pursuant to a search of Mr. Moss’ residence.

The officers who searched Mr. Moss’ residence found scales, plastic baggies, knives, a stun gun, a calculator, and a notebook with his name on the front with names, dates, and amounts inside. In Mr. Moss’ basement, officers found two shotguns, two rifles, two handguns, large amounts of marijuana, prescription pills, needles, over eight grams of heroin, and $43,100 in currency, including $120 in marked money used by the Major Crimes Unit to purchase heroin in the controlled buy which formed the basis for the trafficking charge.

Mr. Moss appealed the forfeiture of cash. The issue was whether forfeiture is limited to the proceeds derived from the indicted criminal offense or can include proceeds derived from any criminal offense, including ones for which a defendant has not been convicted. The statute governing forfeiture proceedings states that property is subject to forfeiture to the state if it is contraband involved in an offense or proceeds derived from or acquired through commission of an offense. Ohio courts recognize that it is not inherently illegal to possess cash. To prove cash is subject to forfeiture, the state must demonstrate it is more probable than not, from all the circumstances, the cash was used in the commission of a criminal offense or constituted proceeds from the commission of an offense. The proceeds do not have to necessarily be from an offense at issue in the criminal case.

In Mr. Moss’ case, he was indicted on charges of engaging in a pattern of corrupt activity, trafficking in heroin, possession of heroin, and having weapons under disability. The officers testified that during the search they found scales, plastic baggies, knives, a stun gun, a calculator, two shotguns, two rifles, two handguns, large amounts of marijuana, prescription pills, needles, heroin, $43,100 in currency, and a notebook with his name on the front and dates and amounts inside. The currency was stored with the drugs or located nearby. The Fifth District found that the trial court did not err in finding it was more probable than not, from all the circumstances, Mr. Moss used the cash or the cash constituted proceeds from the commission of a criminal offense, and was therefore subject to forfeiture.

State of Ohio vs. James W. Johnson: At trial, an officer testified that he observed James Johnson operating a vehicle, ran its plates, and found that the owner of the vehicle’s license was under suspension. The officer then initiated a stop. Mr. Johnson admitted to the suspended license but refused to provide the officer with his license or other identifying information. Mr. Johnson also refused to exit the vehicle and the officer informed him that he could not drive away from the scene. After one and half hours he was finally removed from the vehicle.

Mr. Johnson was convicted of driving under a suspended license, failure to display a license, and obstructing official business. He then filed a pro se appeal titled “The State of Ohio Fifth Circuit Court of Appeals an Admiralty/Martime Tribunal.” The Fifth District found that his brief was not in compliance with Ohio Appellate Rule 16 which sets procedural rules for drafting a brief to file in the Ohio court of appeals.

Mr. Johnson’s brief failed to set forth any separate assignments of error. Instead it contained, what the found to be a rather disjoined statement, with mention of topics ranging from international commerce, maritime law, estate trust/probate court, bankruptcy act, en legis trust name, nanny robot, Uniform Commercial Code, judicial misconduct, malicious prosecution, and false arrest/imprisonment to malum prohibition. The Fifth District also stated that the brief disjunctively enumerated facts and allegations; that it failed to set forth any coherent rationale in support of the arguments; and that Mr. Johnson failed to cite to those parts of the record relating to the arguments.

The Court found that Mr. Johnson’s failure to comply with Ohio Appellate Rule 16 was tantamount to failing to file a brief, stating that “This Court will not assume the role of advocate for appellants in attempting to organize and prosecute the arguments on appeal.” As a result, Mr. Johnson’s appeal was dismissed.

State of Ohio v. Larry W. Dudley, Jr.: Larry Dudley, Jr. pled guilty pursuant to a bill of information to three counts of breaking and entering, felonies in the fifth degree, four counts of petty theft, misdemeanors in the first degree, and one count of theft from an elderly person, felony in the fifth degree. He was sentenced to twelve months on each of the four fifth degree felony counts, to be served consecutively, and ninety days on each of the petty theft counts, to be served concurrently and concurrently with the consecutive counts, for an aggregate term of forty-eight months in prison. The sentences also ran consecutively to sentences imposed in another case, making a total aggregate term of one hundred, thirty-eight months in prison.

Mr. Dudley claimed the trial court erred in sentencing him on the four fifth degree felony counts because it failed to make specific findings on any factor under R.C. 2929.13(B)(1)(b); and that the trial court erred in ordering consecutive sentences resulting in an aggregate sentence that exceeded the maximum prison term allowed by R.C. 2929.14(A) for the most serious offense of which he was convicted. The Fifth District, however, disagreed with both assignments of error.

R.C. 2929.13(B)(1)(b) grants a court discretion to impose a prison term instead of community control to an offender who is convicted or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or is a qualifying assault offense, if one of various additional factors enumerated in the statute apply. If the offender at the time of the offense was serving, or the offender previously had served, a prison term, is a factor that applies to Mr. Dudley’s case

The trial court had discretion to impose a prison term due to a presentence investigation report that showed that Mr. Dudley had previously served a prison term. However, Mr. Dudley argues that the trial court failed to make a specific finding on the record pursuant to R.C. 2953.08(G)(1), which states: “If the sentencing court was required to make the findings required by division (B) or (D) of section 2929.13 … and if the trial court failed to state the required findings on the record, the court hearing an appeal … shall remand the case to the sentencing court and instruct the sentencing court to state, on the record the required findings.”

Mr. Dudley’s argument rests on the fact that the trial court did not specifically find that Mr. Dudley had previously served a prison term. The trial court, noted it had reviewed the presentence investigation report which defense counsel described as “very large, very voluminous” and stated, “You have had an opportunity for residential treatment through CBCF programming, you failed to maintain sobriety, you have had less than stellar success on Probation or Community Control, and you have been found in violation of prior Community Control sanctions and Probation violations, so I am therefore finding that you are not amendable to Community Control, that a prison sentence is in these counts, consistent with the purposes and principles of Ohio sentencing statutes.” The prosecutor pointed out Mr. Dudley’s extensive criminal history and juvenile history, despite numerous prior convictions, prison sentencing, and numerous opportunities to rehabilitate himself and address any drug issues that he may have.”

The Fifth District stated that it does not require the trial court to enter into a specific finding to the applicability of R.C. 2929.13(B)(1)(b). The statements made by the court, coupled with the voluminous presentence investigation report on Mr. Dudley’s extensive criminal history, including prior prison sentences, fulfilled the statutory requirements. As a result, Mr. Dudley’s first assignment of error was denied.

His second assignment of error stated that the trial court erred when ordering consecutive sentences resulting in an aggregate sentence that exceed the maximum prison term allowed by R.C. 2929.14(A) for the most serious offense of which he was convicted. The Fifth District denied this assignment of error as well.

R.C. 2929.08(C)(1), states that a defendant may seek leave to appeal consecutive sentences imposed under R.C. 2929.14(C)(3) that “exceed the maximum prison term allowed by division (A) of that section for the most serious offense of which the defendant was convicted.” However, Ohio courts have stated that this grant of the right to appeal does not mean that consecutive sentences are erroneous merely because they exceed the maximum sentence allowed for the most serious offense. Consecutive sentences for multiple convictions may exceed the maximum sentence for the most serious offense.

The maximum sentence that Mr. Dudley faced was twelve months for each of the four fifth degree felonies to be served consecutively for an aggregate term of forty-eight months. R.C. 2929.14(C)(4) states that if multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if it’s necessary to protect the public from future crime or to punish the offender and that the consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court finds either 1) the offender committed one or more of the offenses while the offender was awaiting trial or sentencing, or was under post-release control for a prior offense; 2) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct; or 3) the offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

The trial court noted it had reviewed the presentence investigation report and victim impact statements and noted Mr. Dudley’s “extremely high” ORAS Score which “is an indicator for the potential for recidivism, and that indicates extremely high risk of recidivism, or very high risk of recidivism.” During sentencing, the trial court specifically stated that the consecutive prison sentences were necessary to protect the public from future crimes because of his potential for recidivism being very high, his inability to rehabilitate himself despite the opportunities given, and that he failed various Community Control and Probation Sanctions.

The trial court’s judgment entry also pointed to the very large investigation report and extensive criminal history and that immediately prior to being sentenced in the case before the court he was sentences in another case involving three counts of burglary in the third degree.

Upon review, the Fifth District found that the trial court fulfilled the statutory requirements, and the order of consecutive service was not unreasonable, arbitrary, or unconscionable. The second assignment of error was denied.

Grace Burling vs. Estate of Dale Burlingame Et, Al.: Grace and Dale Burlingame were heading home in Canton from a family picnic. On their way home they stopped at a red light. The city of Canton, like most large cities, have a device known as a “preemption system,” that overrides the usual traffic pattern in order to provide an emergency vehicle a green light at an intersection. The system initiates in response to the sound of a siren.

James R. Coombs, II was a firefighter with Canton City Fire Department. He was driving a fire truck when responding to an emergency call. Coombs activated the fire trucks lights and siren after pulling out of the fire station, but the siren stopped working while in route. Captain Rick Sacco, a passenger in the fire truck, ordered Coombs to slow down and use the truck’s air horn to alert motorists. Firefighters are trained that if the siren malfunctioned during a run, to convert the emergency response into a non-emergency. However, Coombs continued to proceed in an emergency response mode in spite of the malfunctioning siren.

The Burlingame’s vehicle was stopped at the red light and an ambulance with its siren activated passed through the intersection. A driver of the vehicle that was behind the Burlingame’s van saw the traffic light turn from red to green after the ambulance passed. Mr. Coombs then approached the intersection. He sounded the air horn and was traveling at a speed between 35-40 miles per hour. He thought he had seen his traffic light turn green but he did not. When Mr. Burlingame’s light turned green he slowly pulled into the intersection to make a left turn. Mr. Coombs saw the van pull into the intersection and attempted to avoid hitting it by swerving left of center, however he struck the Burlingame’s vehicle with his 20-ton fire truck, traveling at 40 mph from a perpendicular direction. Mr. Burlingame was killed instantly, and Mrs. Burlingame sustained serious physical injuries and later died from those injuries.

Grace Burlingame filed suit seeking to recover money damages for the personal injuries that she suffered in the collision. She named as Defendants, Joseph Burlingame, Executor of the Estate of Dale Burlingame, now deceased, the City of Canton, The Canton City Fire Department, James R. Coombs, II and Motorists Insurance Group. She also filed a cross-claim against the Canton Fire Department, The City of Canton, James R. Coombs, II and the Canon City Fire Department seeking damages for the wrongful death of Dale Burlingame as a result of the accident. The City of Canton, James R. Coombs, II and the Canton City Fire Department filed an Answer to the cross-claim and included, among its affirmative defenses, that they were entitled to all the immunities, privileges and defenses granted to them pursuant to Chapter 2744 of the Ohio Revised Code. The City, Mr. Coombs, and the Canton City Fire Department cross-claimed against the Estate of Dale Burlingame and claimed that they were entitled to be indemnified for his alleged negligence. The City also sought to recover damages for the loss that it suffered to its fire truck.

The City of Canton, Canton Fire Department and Mr. Combs moved for summary judgment. The trial court found that the evidence demonstrated that Mr. Combs’ actions were negligent at best, and did not rise to the level of malicious purpose, bad faith or in a wanton and reckless manner. Therefore, they held Coombs and the City of Canton had statutory immunity from the Burlingames’ suit.

Grace Burlingame appealed the trial court’s decision and the Fifth District reversed the trial court’s decision to grant summary judgment. The Fifth District found that the firefighter’s alleged violations of traffic statutes and departmental policies were factors a jury could consider to determine whether the officer’s conduct was reckless for purposes of overcoming statutory immunity. The Court further found that there were genuine issues of material fact as to whether the firefighter acted wantonly or recklessly.

The City of Canton and Mr. Coombs appealed the Fifth District’s decision to the Ohio Supreme Court, which accepted the discretionary appeal, and the Court sua sponte reversed the Fifth District’s decision based on the authority of Anderson v. Massilon. The Court remanded the case to the Fifth District for further proceedings consistent with the Court’s opinion in Anderson v. Massillon. Upon remand, the Fifth District permitted the parties to brief the issue of whether the Court’s decision in the initial appeal, reversing the trial court’s decision to grant summary judgment, should be modified in light of the Supreme Court’s decision in Anderson v. Massilon. The Fifth District ultimately held, even in consideration of Anderson v. Massilon, that factual issues exist and that summary judgment was not proper. The Court remanded the matter to the trial court, which denied summary judgment.

In response, the City of Canton and Mr. Coombs appealed, arguing that 1) The trial court erred in finding that factual issue exist, and by failing to analyze the undisputed facts to the Supreme Court’s holding in Anderson v. Massillon, and 2) The appellant’s are entitled to summary judgment because Mr. Coombs did not intentionally violate any traffic statutes or departmental rules, and there was no other evidence that he acted maliciously, with bad faith, or consciously disregarded a known risk.

Civ.R. 56(C) provides that a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. When reviewing a trial court’s decision to grant summary judgment, an appellate court applies the same standard used by the trial court, and reviews the motion for summary judgment de novo.

The Fifth District conducted its second de novo review and considered the evidence in light most favorable to the nonmoving party. The Court found that there are general issues of material fact that overcome a finding of judgment as a matter of law in favor of the City of Canton and Mr. Coombs because reasonable minds could come to differing conclusions as to whether the appellants are liable for the injuries to the Burlingames or whether statutory immunity apples. The Fifth District consequently overruled the two assignments of error argued by the City of Canton and Mr. Coombs.

State of Ohio vs. Richard Hoxworth: Richard Hoxworth came before the Fifth District to appeal a Judgment Entry of the Homes County Municipal Court on September 9, 2014, denying his motion to dismiss a motion to revoke probation.

On July 14, 2009 Mr. Hoxworth pled guilty to one count of aggravating menacing, a first degree misdemeanor, and was sentenced to 180 days in jail, with credit for time served. The balance of the jail term was suspended, and Mr. Hoxworth was placed on probation for 2 years.

On January 12, 2010, a motion to revoke Mr. Hoxworth’s probation was filed alleging that he had failed to report as directed. On January 19. 2010 the probation violation was dismissed. On December 2, 2010 a new motion to revoke probation was filed alleging that he admitted to using illegal drugs and tested positive for the same. On December 7, 2010, he admitted to the probation violation and received a new term of probation for 3 years with an order to complete drug counseling. On November 14, 2012 a motion to revoke probation was filed alleging that he had failed to report as directed. On December 19, 2012 he admitted to the probation violation and was again placed on probation for 3 years. On August 6, 2014, another motion to revoke probation was filed alleging Mr. Hoxworth had failed to report as ordered and failed to pay his probation fees. On August 12, 2014, a probable cause hearing was held, and the officer testified that Mr. Hoxworth was originally placed on probation on July 14, 2009 and that the instant motion to revoke filed August 6, 2014, was filed more than (5) years from the date Appellant was original placed on probation.

On August 25, 2014, Mr. Hoxworth filed a motion to dismiss the motion to revoke, and the next day an adjudicatory hearing was held. The trial court denied Mr. Hoxworth’s motion to dismiss and he entered an admission to the probation violation. He was ordered to serve 180 days in jail with credit for time served. The balance was suspended, and he was placed on probation for an additional year. On September 9, 2014, a Judgment Entry was filed denying his motion to dismiss the motion to revoke probation.

Mr. Hoxworth then appealed the judgment entry to the Fifth District arguing that the trial court erred when it denied his motion to dismiss the motion to revoke probation. The Fifth District agreed. R.C. §2929.25(A)(2) states that the total time of all community-control sanctions imposed for a misdemeanor offense may not exceed five years. Mr. Hoxworth was initially placed on probation on July 14, 2009, and no evidence was presented that the term of probation was extended for any reason. The five-year limitation was up on July 14, 2014 and the State’s motion to revoke probation was not filed until August 6, 2014, after the five-year maximum period expired. As a result, the Fifth District found that the trial court erred in denying Mr. Hoxworth’s Motion to Dismiss. The Court reversed the trial court’s decision and terminated Mr. Hoxworth’s probation.