Fifth District Summary: December 1, 2014

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State of Ohio vs. David Riggleman: David Riggleman was found guilty for two counts of aggravated trafficking in drugs, both felonies of the fourth degree, which he had committed in February 2012. He was sentenced on April 30, 2013 to serve twelve months in prison on each account, to be served consecutively. Prior to sentencing, he also pled guilty to three misdemeanor offenses in municipal court and was placed on probation. Additionally, in a separate case, he was charged with two felonies of the third and fifth degree and two misdemeanors of the first and fourth degree.

Mr. Riggleman appealed arguing that the prison sentences for the aggravated trafficking in drugs was contrary to R.C. 2929.13(B) which states that if an offender is convicted or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence, the court shall sentence the offender to a community control sanction of at least one year’s duration. The statute lists several additional elements that also need to be met. However, 2929.13(B)(1)(B) provides an exception that, if met, gives the sentencing court discretion to impose a prison term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence. The Fifth District agreed with Riggleman and reversed and remanded his case for resentencing pursuant to R.C. 2929.13(B). Mr. Riggleman was re-sentenced on March 3, 2014 and the same 2-year prison sentence was imposed.

Mr. Riggleman appealed the resentencing claiming the trial court committed an ex post facto violation by retroactively applying amendments to R.C. 2929.13(B)(1)(B) that disqualified him from mandatory community control. Retroactive changes in the measure of punishment are considered impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense. However, a speculative and attenuated possibility that the statutory change has increased the measure of punishment will not constitute an ex post facto violation.

Mr. Riggleman concedes that 2929.3(B)(1)(b) already listed, at the time of his offense, a bond violation as an exception that would give court discretion to impose a prison term instead of community control sanctions. However, he argues that the trial court also relied on an exception for organized criminal activity that was amended into R.C. 2929.13(B)(1)(b) after he committed the offenses. While the court relying on the bond charge alone was enough to make the imposed prison terms permissible and not an ex post facto violation, Mr. Riggleman contends that when the court retroactively applied the organized criminal activity exception he was prejudiced.

The Court found no ex post facto violation, because the trial court’s decision for sentencing was based partly on the bond violation exception that was contained in R.C. 2929.13(B)(1)(b) at the time the offenses were committed. They found Mr. Riggleman’s claim of prejudice when the trial court retroactively applied a change in the statute to be too ambiguous for it to be considered an ex post facto violation. A speculative and attenuated possibility that a statutory change has increased the measure of punishment will not constitute and ex post facto violation. Additionally, the Court found incorporating other criminal activity as additional factors to consider for sentencing has already long been established. Because the trial court properly based its prison sentence on the bond violation exception that was contained in R.C. 2929.13(B)(1)(b) at the time of the offense, the consideration of other organized criminal activity by Mr. Riggleman was not an ex post facto violation, but rather it was outside information that sentencing courts regularly consider.

State of Ohio v. Randall E. Adkins: Randall Adkins was indicted on one count for having weapons under disability and one count of possession of drug paraphernalia. At trial, he was found guilty of the weapons count but not the guilty of the possession count.

On appeal Mr. Adkins raised four assignments of error: 1) The trial court erred in failing to uphold appellant’s rights against unreasonable search and seizure under the fourth and fourteenth amendment of the U.S. Constitution and Article I, Section 14 of the Ohio Constitution; 2) The trial court’s finding of guilty is against the manifest weight and sufficiency of the evidence and is a violation of the due process clause of the 5th and 14th amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution; 3) Ineffective Assistance of Counsel; and 4) Inconsistent Jury Verdicts.

The first assignment error came before the Fifth District as an Anders Appeal. The Supreme Court has held that counsel is required to file a notice of appeal whenever requested to do so by the client, even if the counsel believes it to be frivolous. However, the Supreme Court in Anders v. California required that when counsel concludes that an appeal would be frivolous, they must submit a brief to the court and to the defendant, requesting withdrawal but also referring to anything in the record that might arguably support the appeal. If the court agrees that the appeal is frivolous then they may grant the counsel’s request to withdraw and dismiss the appeal. If on the other had it finds any of the legal points arguable on their merits, it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

The court only found the assignment of error relating to the search and seizure as wholly frivolous and found the rest to be not wholly frivolous. Therefore the counsel’s motion to withdraw was denied and when the Appellant’s brief was refiled, the court did not address the first assignment of error.

The appellate court denied the second assignment of error which argued that the trial court’s finding was against the manifest weight and sufficiency of the evidence. The case involved detectives searching a hotel room and finding a firearm in illegal possession by Mr. Adkins, due to the fact he was a convicted felon. A drug task force had set up surveillance of Mr. Adkins outside a motel which was an area known for suspicious activity and people selling drugs. One of the detectives observed Mr. Adkins drive out of the parking lot, and later stopped him a few miles from the motel for failure to use his turn signal. They questioned him about the room he was staying at in and he told him that he had rented it for a friend so that he could sell drugs out of the room. He consented to a search of his vehicle and the motel room. In the room, the detectives discovered a firearm in a cubbyhole underneath a countertop. Mr. Adkins told the detective that the firearm was not his, but rather belonged to the friend who was staying in another room. Mr. Adkins admitted to the Detective that he knew the firearm was in the motel room, and the Detective testified that he told him “I just let him (the friend) store it in my room.”

During the opening statement, the defense counsel argued that Mr. Adkins did not know the firearm was in the room. He testified that he rented the room for his friend but did not know there was a firearm in the room. He denied telling the detective that he knew the firearm was in the room.

The jury, given the two different versions on the issue of knowledge of the fire arm, chose to believe the testimony of the police officers. Upon review, the Court found there was sufficient evidence, if believed, to support the conviction, and found no manifest miscarriage of justice.

In the third assignment of error, Mr. Adkins argues he was denied effective assistance of trial counsel because his attorney failed to ensure the definition of “dominion and control” was included in the jury instructions, failed to argue against the state’s objection to incoherent testimony, failed to object to speculation questioning, and failed to object to the jury’s verdict or demand a judgment notwithstanding the verdict.

The Fifth District disagreed with Mr. Adkins’s allegation of ineffective assistance of counsel. In order for Mr. Adkins to effectively argue he was denied assistance of trial counsel he must show that the counsel’s performance fell below an objective standard of reasonable representation and that prejudice arose from their performance. To show that prejudice arose from their performance, he must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.

The Fifth District also disagreed with Mr. Adkins’s assertion that he was denied effective assistance of trial counsel due to his counsel’s failure to demand a judgment notwithstanding the verdict. The court had held that a Civ.R. 50(B) motion for judgment notwithstanding the verdict are inapplicable to criminal proceedings since it is a civil rule. The other arguments for being denied assistance of trial counsel revolved around the sole issue of the Mr. Adkins knowledge of the firearm in the motel room. The only testimony as to appellant’s knowledge was from Detectives Green and Hoskinson. The Defense counsel made a motion for acquittal at the close of the state’s case-in-chief. The Fifth District also reviewed the entire transcript and found no deficiency by the defense counsel as to the jury instructions and objections made or not made.

Mr. Adkins final assignment of error was that there were inconsistent verdicts as to a firearm and drug paraphernalia charges because they were found in the same location and the jury only found him guilty for the weapons count. The criminal statute for possession of drug paraphernalia states that, “no person shall knowingly use, or possess with purpose to use, drug paraphernalia.” The Court stated that the jury could have found there was sufficient evidence that appellant “possessed” the drug paraphernalia but there was insufficient evidence that appellant “used” it or was “planning to use it.” They could have found that Mr. Adkins denial of the drug paraphernalia was more believable than his denial of the firearm.

State of Ohio vs. Jennifer A. Phillips: Jennifer Phillips was convicted and sentenced for one count of child endangering, a first-degree misdemeanor. She appealed her conviction to the Fifth District arguing that it was against the manifest weight and sufficiency of the evidence.

Ms. Phillips was at a Wal-Mart with her five children who were being unruly and ignoring her directions. A Wal-Mart security officer contacted the police and stated that several Wal-Mart employees had witnessed a woman identified as Philips grab her oldest son around the neck and upper torso area and walk him to the family’s van. A police officer watched a security video of the parking lot which showed Philips put her arms around her child’s neck and upper torso area and walk him a short distance to the family van. The officer spoke to Ms. Philips and took statements from four Wal-Mart employees who witnessed the event. Ms. Philips was charged with Child Endangering and after a bench trial, was found guilty and sentenced to serve 180 days in jail. Ultimately her jail time was suspended, but she was placed on probation for two years.

Ohio statutory law for misdemeanor endangering children states that “No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection or support.” “Substantial risk” means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist. The culpable mental state for the crime of child endangering is recklessness. Ohio’s statute states that “a person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be a certain nature. A person is reckless with respect to circumstances when, the heedless indifference to the consequences, he perversely disregards a known risk that such circumstances likely exist.”

Ms. Phillips specifically argues that the evidence did not support conviction of misdemeanor child endangerment because there was no evidence that she recklessly violated a duty of care, protection or support. The Fifth District strict agreed. The Court cited case law in its decision which stated that parents have the right of restraint over their children and the duty of correcting and punishing them for misbehavior and that parents have the right to use reasonable physical discipline, or corporal punishment, to prevent and punish a child’s misconduct even though the child endangering statute states the no person shall administer corporal punishment or other physical disciplinary measures, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious harm to the child.

Parental discipline acts as an affirmative defense to a charge of child endangering. The Court stated that when determining whether parental discipline is “extreme or excessive,” a court considers the totality of the circumstances. A court considers: 1) the child’s age; 2) the child’s behavior leading up to the discipline; 3) the child’s response to prior non-corporal punishment; the location and severity of the punishment; and 5) the parent’s state of mind while administering the punishment.

The Court found that the trial court only found the elements of child endangerment were met and did not consider the reasonableness or propriety of the corporal punishment employed by Ms. Philips. She had removed the children from the store for misbehaving, and upon their return to the store, the children were under control and were behaved. The evidence presented showed that no child suffered injuries. The officer did not observe bruising, red marks, or any other indicia of injury. The child was also allowed to return to shopping with his mother and siblings.

Ultimately, the Court found that the state failed to prove by sufficient evidence that the type of discipline employed by Ms. Phillips resulted in physical harm or could result in a substantial risk of physical harm to the child. They also found that the state failed to prove her actions were reckless and that her actions fell within the established parameters of “proper and reasonable parental discipline.”

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