Fifth District Summary for the Week of November 17, 2014

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State of Ohio vs. Darren Staton: Darren Staton was at a high school football game with his girlfriend, Sylvia Hawk. Seated several rows over were Sylvia’s ex-husband Delbert, the children of Sylvia and Delbert, and his current wife Jennifer. Darren walked by them and said several times, “I’m going to f-ing smash you.” Delbert and Jennifer testified that upon leaving the game, they discovered that someone wrote “Delbert is gay” in the dirt on Delbert’s truck. A witness also testified that they had heard Darren’s statement and took note of the language because they found the wording “I’m going to smash you” amusing. The witness turned around and also noticed Darren was threatening Delbert. The witness did not hear Delbert say anything.

Sylvia Hawks testified that Delbert instigated the confrontation by calling Darren an “f-ing a-hole.” Both Darren and Syliva denied writing “Delbert is gay” in dirt on Delbert’s truck, describing the act as “immature”. Delbert was found guilty for menacing, a misdemeanor of the fourth degree.

On appeal Darren argued that the evidence was insufficient to support his conviction of menacing and his conviction was against the manifest weight of the evidence. The appellate court disagreed. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the conviction.” The Ohio statute for Menacing states that “No person shall knowing cause another to believe that the offender will cause physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. In addition to any other basis for the other person’s belief that the offender will cause physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family, the other person’s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person to which the other person belongs.”

In reviewing the evidence, the appellate court found every element of menacing. While Darren argued that the deputy’s investigation of the incident was insufficient, the unbiased witness could not identify appellant, and the Hawks’s testimony about the details were inconsistent, he did admit making the statement, “If you mess with me, I’ll smash you.” Witnesses testified the same threat without the conditional language. Such minor deficiencies go to the credibility of the witness which is for the trier of fact to resolve. Since any rational trier of fact could have found the essential elements of menacing proven beyond a reasonable doubt, and because it was not an exceptional case in which the evidence weighs heavily against a conviction, Darren’s assignments of error were overruled.

State of Ohio vs. Roscoe R. Adams: Mr. Adams was found guilty of aggravated robbery with a firearm specification and felonious assault with a firearm specification. He was involved in the robbery of a drug dealer, during which he fired shots at the drug dealer while he was attempting to flee. The drug dealer was unable to get out of the driveway in his vehicle because a school bus had stopped to let off children. A witness waiting for the school bus stated that Mr. Adams fired a shot at the leaving vehicle.

Mr. Adams denied handling the firearm claiming he only took it away from a co-defendant, and took the blame because an accomplice told him he could not get in trouble for robbing a drug dealer. He also admitted to have an extensive history of illicit drug use. The trial court, based on the facts and Mr. Adams’s lack of remorse, sentenced him to an aggregate prison term of twelve years.

In his appeal, Mr. Adams claimed that his sentence was contrary to law and that the trial court abused its discretion when sentencing him. The Ohio Supreme Court, in State v. Kalish, has established a two-step procedure for reviewing a felony sentence. The first step is to “examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” If the first step is satisfied, the second step requires trial court’s decision be review under an abuse-of-discretion standard which states that “where the record lacks sufficient data to justify the sentence, the court may well abuse its discretion by imposing that sentence without a suitable explanation.” The Appellate court however goes by a statutory standard, since the abuse-of-discretion standard resulted from a plurality opinion of “questionable precedential value.” For the appellate court to overturn the imposition of a sentence, it must have been “otherwise contrary to law”; or the appellate court, upon its review, clearly and convincingly finds that “the record does not support the sentencing court’s findings. Mr. Adams framed both his assignments of error under both the statutory standard and the Kalish framework.

Mr. Adams argues that as a first time felony offender his sentence is contrary to law because it does not comply with the overriding purpose of felony sentencing, which is “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanction that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” He asserts that he should have received a minimum sentence of 6 years instead. However, judging by the circumstances, the appellate court found that the sentencing was not contrary to law. The relative statute does not require a minimum sentence. The reasoning behind the trial court’s sentencing was due to Mr. Adams lack of remorse and the high level of danger associated with firing a gun towards a school bus with kids inside.

Mr. Adams also argued his sentence is an abuse of discretion because his conduct is less serious than conduct normally constituting the offense and he is not likely to re-offend. The appellate court disagreed. Ohio statute cites an offender’s pattern of drug use related to an offense and genuine lack of remorse as factors indicating likeliness to reoffend. The trial court is in the best position to determine if Mr. Adams was genuine in his expression of remorse. The record shows that his disingenuous minimizing of his role in the robbery indicated a lack of responsibility and remorse. He also admitted to being a drug addict with a costly habit. The appellate court found that he trial court cited all the necessary factors in its sentencing decision, and engaged in the correct analysis with evidence to support their findings. Mr. Adams assignments of error were overruled.

State of Ohio vs. Terry J. Feagin: This case arose from an incident in Richland County Jail. Jason Jarvis and Austin Risner were inmates in the jail and shared the same pod. During commissary, a time period when inmates are permitted to buy food and supplies, an inmate remarked upon a newspaper photograph of a high-school girls’ volleyball team, stating that the girls would be 18 when he got out of jail. Risner replied with something along the lines of “don’t judge a book by its cover” because “his neighbor was 12 years old but looked like she was in high school.” Terry J. Feagin, the appellant, approached Risner, stating that he had a 12-year-old daughter and accused Risner of being a pedophile. Risner stated he meant nothing by the statement. As Risner sat at the table eating, Mr. Feagin punched him several times in the left side of his face. Shortly after the assault, Jason Jarvis stood up, grabbed Risner by the back of the head, and struck him repeatedly with uppercut punches from behind.

Eventually Risner was transported to a Hospital which found complex facial fractures, he was then transported to another hospital for specialized facial surgery.

At trial the State of Ohio submitted evidence which consisted of testimony of several corrections officers, Risner, and the doctor who evaluated Risner. The state’s exhibits included the videotape of the incident at jail, Risner’s medical records, and photos of his injuries.

Mr. Feagin was the only witness in his own defense. He testified that he walked away after the verbal confrontation with Risner and that he later heard sounds of the fight, looked up, and saw Jarvis assaulting Risner. He stated that he had no contact with Jarvis regarding the incident and did not encourage him to assault Risner. On cross examination he was confronted with the jail video and he admitted to punching Risner in the face.

The trial court instructed the jury upon aiding and abetting felonious assault and the lesser included offense of simple assault. The trial court instructed the jury, over the objection of the Mr. Feagin, that he could be found guilty of aiding and abetting felonious assault if they found him either to be the principal or that he aided the principal. On appeal, Mr. Feagin argued that this was an error because he was denied a unanimous verdict because the jury could find that he was either the principal or an aider and abettor.

The appellate court disagreed, citing a statute that stated juror unanimity on each element is required but the jurors need not agree to a single way by which an element is satisfied. Applied to this case, the jury was not required to agree whether Mr. Feagin’s punches caused the serious physical harm or whether Jarvis’ punches did because each is an alternate form of aiding and abetting felonious assault. There is no distinction between a defendant convicted of complicity or as a principal offender.

Mr. Feagin’s next assignment of error alleged there was insufficient evidence to support the conviction and it was not supported by the weight of the evidence. When reviewing the sufficiency of evidence, the appellate court examines the evidence admitted to trial in order to determine if a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt.

Mr. Feagin argued Jarvis was the principal offender whose more vicious and sustained assault upon Risner caused the serious physical harm. The Appellate court found that the video contradicts this argument showing Mr. Feagin striking Risner multiple times. It is up to the jury to accept or reject Mr. Feagin’s testimony in light of this evidence.

Mr. Feagin also argued that aiding and abetting requires some sort of active involvement beyond mere presence at the crime scene and that the evidence must show that the he supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime. Viewing the evidence, the appellate court found that a jury could reasonably find that he incited, which means to provoke or stir up, Jarvis to the subsequent attack on Risner.

Finally, Mr. Feagin pointed to the “mob fight” rule, arguing that his mere presence at the scene did not rise to the level of cooperation, connection, or conspiracy required for aiding and abetting. The appellate court disagreed noting that the rule states that “to constitute the person engaged in the fight an aider and abettor of homicide, it should appear, either that there was a prior conspiracy, or that he purposely incited or encouraged the slayer, or did some overt act himself with an intent to cause the death of the antagonist.” The appellate court found that a trier of fact, especially after viewing the video, could reasonably conclude that when Mr. Feagin repeatedly struck Risner, he knowingly caused serious physical harm to him. None of Mr. Feagin’s arguments rose to the level where the appellate court could find that the jury lost its way to create a manifest miscarriage of justice, as required for his conviction to be reversed and a new trial ordered.

State of Ohio vs. Bobby A. Bailey: This case arose when Mr. Bailey, sometimes in league with others, stole a number of items from at least three victims to support his heroin habit. He was found guilty of complicity to burglary, complicity to theft from an elderly person, complicity to petty theft, tampering with evidence, and breaking and entering. He appealed the trial court’s sentencing which was a total of three twelve-month consecutive terms and two six-month consecutive terms. He argued that the trial court (1) erred by imposing consecutive sentences that exceeded the maximum prison term for the most serious offense he was convicted of; (2) the trial court erred ordering a prison sentence rather than community control; the trial court erred by ordering consecutive rather than concurrent prison sentences for a first time felony based upon improper statements by the prosecuting attorney; (3) he received ineffective counsel because his counsel did not object to the prosecuting attorney’s improper remarks at sentencing; and (4) that the court erred in ordering consecutive prison sentences because it placed an unnecessary burden on state resources.

Ohio statute provides two ground where an appellate court can overturn the imposition of consecutive sentences: (1) the sentence is “otherwise contrary to law”; or (2) the appellate court, upon its review, clearly and convincingly find that “the record does not support the sentencing court’s findings.” The presumption is that sentencing is to run concurrent, unless the trial court makes the findings required by statute for imposing a consecutive sentence.

The appellate court found that the consecutive sentences were within the range permitted by law and that the record had shown the appropriate findings for imposing a consecutive sentence rather than concurrent ones. Mr. Bailey was sentenced consecutively due to his criminal history, self-reporting of ongoing criminal activity, and the court’s belief there was a poor chance of possible rehabilitation. The trial court stated that the consecutive sentences were appropriate due to the seriousness of his conduct and the danger he posed to the public. The court also stated that the consecutive sentences were necessary to protect the public from future crime.

Mr. Bailey took issue that the trial court supported its sentence by emphasizing his drug abuse and other voluntary admissions that didn’t involve criminal charges. He also argued that the plaintiff stating that he already received his “break”, referring to their plea agreement, was improper, and that he received ineffective counsel when his counsel did not object. The appellate court pointed out that evidence of other crimes, including crimes that never result in criminal charges being pursued, or criminal charges that are dismissed as a result of a plea bargain, may be considered at sentencing. The court added that drug abuse and other admissions were part of Mr. Bailey’s social history and worthy of consideration by the courts during the sentencing phase.

They also found that Mr. Bailey did not demonstrate why the prison term was an unnecessary burden on state resources, stating that “although burdens on state resources may be relevant sentencing criteria, state law does not require trial courts to elevate resource conservation above seriousness and recidivism factors.

State vs Christopher Rose: Christopher Rose was charged with illegal conveyance of weapons or prohibited items onto grounds of specified governmental facility, and drug trafficking. After negotiations he pled guilty. The admission of guilt/judgment entry stated that “No promises have been made to me as part of this plea agreement except: community control or nine months in prison to be determined at sentencing.

The trial court sentenced him to a term of eighteen-months for the conveyance of weapons and six-months for drug trafficking. The prison terms were suspended, however, on condition he complied with a thirty-month community control sanction. No direct appeal was made.

Mr. Rose later committed a variety of community control violations and the eighteen-month sentence was imposed concurrently with the six-month term. Mr. Rose then filed a pro se notice of appeal arguing that the trial court erred by failing to impose the negotiated plea of nine months in prison by imposing a sentence of eighteen months and that he did not knowingly and voluntarily plead guilty because he did not understand that his prison sentence could be in excess of nine months.

The appellate court found these arguments were barred by res judicata, which precludes one from raising claims that was raised or could have been raised by the defendant at the trial which resulted in the judgment of conviction or an appeal from that judgment. Mr. Rose could have raised his claims on direct appeal from the trial court’s sentencing entry, however he never pursued a direct appeal and therefore was barred by res judicata.

State of Ohio vs. Erik M. Keserich: Erik Keiserich was stopped by police for a faulty license plate. Following an investigation and field sobriety tests, he was charged with operating a motor vehicle under the influence (both “impaired” under 4511.19*(A)(1)(a) and a “high tier” chemical test under 4511.19(A)(1)(h)), having three such charges within six years, no license plate light, and a cracked windshield. Mr. Keiserich filed a motion to suppress claiming an illegal stop, no reasonable suspicion to justify the administration of field sobriety tests, and no probable cause to arrest. He also challenged the officer’s substantial compliance with field sobriety tests. The trial court granted in part and denied in part the motion, finding that the stop was justified and probable cause existed to arrest Mr. Keiserich, but that the administration of the horizontal nystagmus test was noncompliant and he wasn’t properly advised of his Miranda rights. As a result, the trial court suppressed the results of the test and any statements made after the arrest. The state dismissed the “impaired” OVI charge and Mr. Keiserich pled no contest to the remaining charges. By judgment order, the trial court sentenced him to one hundred eight days in jail, sixty days suspended.

Mr. Keiserich appealed, arguing that the trial court abused its discretion in overruling his motion to suppress because the officer lacked reasonable suspicion based upon articulable facts to justify the administration of the field sobriety tests. The appellate court agreed.

The appellate court noted that requiring a driver to submit to field sobriety tests constitutes a seizure within the meaning of the Fourth Amendment. Because the intrusion is minor, it only requires the officer have reasonable suspicion that the driver is under the influence of alcohol to conduct a field sobriety test. Looking at the totality of the circumstances, the appellate court found that the officer lacked reasonable suspicion. He did not smell alcohol until after Mr. Keiserich exited the car. However, this was not surprising since Mr. Keiserich admitted to consuming two alcoholic drinks. While this is admission is significant it is not determinative given the law in Ohio regarding drinking and driving. The officer stated that Mr. Keiserich’s eyes were glossy. The twelfth district has held that bloodshot eyes are a classic indicia of intoxication and the fact that there may be another explanation for glassy, bloodshot eyes does not diminish the relevance of these factors regarding the question of whether the officer reasonably suspected intoxication. The 5th district disagreed. They found the fact that Mr. Keiserich was found in a car with four to five other passengers who were smoking to diminish the relevance of this factor.

The appellate court emphasized that the arresting officer did not observe any moving violation but stopped Mr. Keiserich solely due to an equipment violation. Additionally there were several circumstances that served to diminish reasonable suspicion of intoxication when looking at the totality of the circumstances. Mr. Keiserich did not fumble or have difficulty producing his license, registration, and/or proof of insurance. He had no problem exiting his vehicle and exhibited no clues of impairment in his normal walking. Finally, he was able to respond appropriately to the arresting officer’s requests.

Considering all of this, the appellate court reversed the trial court’s judgment, vacated Mr. Keiserich’s conviction and sentence, and remanded the matter to the trial court for further proceedings.

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