Fifth District Summary: Week of December 29, 2014

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State of Ohio v Jared Lipford: Jared Lipford appealed his conviction for one count of illegal assembly or possession of chemicals for the manufacture of drugs, and one count of tampering with Evidence. On May 1, 2013, Canton Police were dispatched to Mr. Lipford’s residence for a child welfare check based upon suspicion of a methamphetamine lab. As it turned out, an active lab was located in the attic of the home. Upon entering the attic, officers found a blue plastic Rubbermaid bin. The officers also found 20 2-liter bottles, several 20-ounce bottles, empty Sudafed boxes, coffee filters, cold packs, Coleman fuel, crystal drain opener, lithium batteries and drug paraphernalia.

Prior to trial, Mr. Lipford moved that the trial court exclude evidence relative to his use and sale of heroin and methamphetamines. The state argued that such evidence should be allowed since Mr. Lipford traded both meth and heroin for the chemicals needed to operate the methamphetamine lab. The trial court overruled the motion in limine, but reserved should Mr. Lipford renew the motion at trial, if the testimony became purely prejudicial.

Mr. Lipford was sentenced to seven years for illegal assembly or possession of chemicals for the manufacture of drugs, and three years on tampering with evidence, both of which were to run concurrently. On appeal he brought several assignments of error.

In his first assignment of error, Mr. Lipford argued that the trial court erred when it allowed various witnesses to testify to improper character evidence of other crimes or acts in violation of Evidence Rule 404. Under Evidence Rule 404, evidence of other crimes, wrongs, or acts, are not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Fifth District found that the trial court did not err in admitting other acts of evidence such as Mr. Lipford selling and bartering meth to others and trading drugs for the chemicals needed to make additional methamphetamine, since it demonstrated his intent to manufacture methamphetamine with the chemicals. The Court did find it to be in error for the trial court to allow witness testimony of a particular event where Mr. Lipford was buying heroin and ended up being chased by a dealer with a gun. However, the error was found to be harmless due to the overwhelming evidence as to his guilt.

Other character evidence that Mr. Lipford had issue with were statements made by a confidential informant for the police regarding Mr. Lipford selling meth in the past. The informant made contact with Mr. Lipford in order to make buys from him and gain more information. The defense counsel moved for mistrial because information regarding the confidential informant was not disclosed during discovery. The trial court felt it was not against the rules of discovery because the informant brought this information on his own accord when testifying and it was not known by the prosecutor. The defense counsel on the other hand argued that this gave the informant as a witness a motive to lie. The trial court had the defense counsel question the informant outside of the presence of the jury in order to determine what else was known before cross-examining him in front of the jury. The Court then allowed witness testimony from the informant. The defense counsel had withdrawn its motion for a mistrial and wished to cross-examine the informant as part of its defense strategy. The Fifth District found that this meant Mr. Lipford had waived the objection to the testimony concerning the information obtained by the informant. Additionally, the Court stated that if the evidence was erroneously admitted at trial, the admission was a harmless error. The first assignment of error was overruled.

Mr. Lipford’s second assignment of error asserted that the trial court erred by failing to give the jury a limiting instruction relative to other acts evidence presented to the jury. Pursuant to the Fifth District’s analysis and disposition of Mr. Lipford’s first assignment of error, the Court found that the trial court did not err in instructing the jury. Limiting instruction was not warranted, and furthermore, Mr. Lipford did not request a limiting instruction. Therefore, the trial court was under no obligation to provide such instruction. The second assignment of error was overruled.

The third assignment of error challenged the trial court’s admission of alleged improper testimony by several witnesses, including alleged hearsay statements. Mr. Lipford specifically objected to the testimony of his co-defendants Ashley Stegeman and Matthew Pallaye, which he asserts is hearsay and based upon no personal information. Ms. Stegeman, who lived with Mr. Pallaye and Mr. Lipford, testified that she knew Mr. Lipford had cooked meth because he had told her he used to cook, and he was known for his quality meth. She also testified that she was told by Mr. Lipford that he was upstairs in the attic of the house cooking meth. The trial court overruled the defense counsel’s objection that the testimony was hearsay.

Matthew Pallaye testified that he had figured out Mr. Lipford was making meth because they didn’t have the money and didn’t go anywhere to get it. He then testified that he asked Mr. Lipford what was going on, and he had told him that he was making meth. The trial court overruled the defense counsel’s object that this testimony was hearsay as well.

The Fifth District held that the trial court did not err in allowing their testimony, finding that Ms. Stegman and Mr. Pallaye were testifying to Mr. Lipford’s statements made to them. These statements were against his own interests, and such statements are not considered hearsay.

In the fourth assignment of error, Mr. Lipford maintained his conviction was against the manifest weight and sufficiency of the evidence. Upon review, the Fifth District disagreed. Ms. Stegeman and Mr. Pallaye testified that Mr. Lipford brought a blue Rubbermaid tote with him when moving into the attic of the residence. Responding officers found a blue tote in the attic, along with materials necessary to operate a methamphetamine lab. Mr. Lipford cooked methamphetamine in the past, and his codefendants testified he was upstairs in the residence involved in the operation of a meth lab, and had told them he was engaged in the cooking of methamphetamine. Considering these facts, a rational trier of fact could have found the essential elements proven beyond a reasonable doubt. Therefore the jury did not lose its way and create such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered.

Finally, in the fifth assignment of error, Mr. Lipford maintained he was denied the effective assistance of trial counsel. A properly licensed attorney is presumed competent. In order to prevail on a claim of ineffective assistance of counsel, the appellant must show counsel’s performance fell below an objective standard of reasonable representation and but for counsel’s error, the result of the proceedings would have been different.

Mr. Lipford argues that his trial counsel was ineffective in failing to object to hearsay testimony, and witness testimony not based on personal knowledge. He further argues counsel failed to object to other acts evidence, and failing to request a limited instruction. The Fifth District found, as discussed in the first, second, and third assignment of error, that the evidence was properly admitted and others amounted to harmless error. Therefore, the assignment of error was overruled, since but for the alleged errors, the outcome of the trial would not have had a different result.

State of Ohio v. Mark A. Williams: Mark Williams entered a plea of guilty for one count of Violating a Protection Order, in violation of R.C. §2919.27, a fourth degree misdemeanor. He was sentenced to 180 days in jail, 180 days suspended, forty hours of community service, eighteen months of community control sanctions and ordered to pay court costs. Six weeks later he filed a motion to withdraw his guilty plea, and the trial court denied his motion. On appeal he argues that the trial court erred in denying his motion to vacate his guilty plea.

Crim.R. 32.1 states that “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

Appellate review of a trial court’s decision under Crim 32.1 is limited to a determination of whether the trial court abused its discretion. In order for the decision to be considered and abuse of discretion, it must have been unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. When deciding whether to grant or deny a Crim 32.1 motion, the trial court has sound discretion and looks to the good faith, credibility, and weight of the movant’s assertions in support of the motion.

Mr. Williams’ assertion was that he was denied the effective assistance of counsel because his attorney failed to attend a scheduled pre-trial due to illness and never requested that another pre-trial be set. He had three different attorneys during the pendency of the lower court case: a public defender, whom he orally asked the trial court to remove at the final pre-trial. The trial court granted Mr. Williams more time to hire private counsel. Attorney Gaffney was hired and then substituted for r. William’s first retained attorney. The jury trial date was converted to a status conference, where settlement discussions took place but the matter was not resolved. A new jury trial was set which Attorney Gaffney became ill on, so it was reset once more. On that date Mr. Williams accepted a negotiated plea and entered a guilty plea to the charge of violating a protection order. An extensive colloquy was conducted prior to accepting Mr. William’s change of plea. Mr. Williams also executed a written waiver of the jury trial and an explanation of “Your Rights” form.

On appeal, Mr. Williams provided a transcript of the hearing on his motion to withdraw but did not provide the Court with a transcript of the change of plea and sentencing hearing. The Supreme Court of Ohio has held that “the duty to provide a transcript for appellate review falls upon the appellant.” This is necessary because an appellant bears the burden of showing error by reference to matters in the record. When portions of the transcript necessary for a resolution of assigned errors are omitted from the record, the reviewing court has no choice but to presume validity of the lower court’s proceedings. In regards to Mr. Williams’ case, he had nothing to show the Fifth District to overcome this presumption since he had no transcript of the plea and sentencing proceedings.

Furthermore, under the doctrine of “invited error”, it is well settled that “a party will not be permitted to take advantage of an error which he himself invited or induce the trial court to make.” Mr. Williams himself agreed to the negotiated plea. The Fifth District found that Mr. Williams failed to point to anything in the record to support his claim of ineffective assistance of counsel or his claim that he did not understand the plea proceedings. Upon review of the entirety of his claims, the Court was unpersuaded that the trial court abused its discretion in declining to find a manifest injustice warranting the extraordinary step of negating Mr. Williams’ plea.

State of Ohio v. Adel Ahmed Hmedian: Adel Ahmed Hmedian appealed the trial court’s denial of his motion to suppress evidence. Two confidential informants on separate occasions had purchased synthetic marijuana from Mr. Hmedian’s store as part of an ongoing investigation. The items obtained during the buy were returned to a crime lab for analysis and tested positive as a schedule I substance. Officers also arranged a third controlled buy but the item recovered did not test positive.

The officers had obtained a search warrant for the premises prior to receiving the test results of the third buy. When they executed the search warrant two days later, they entered the store and immediately detained and handcuffed Mr. Hmedian and his employee. The officers recovered items from the store that tested positive for being synthetic marijuana, bath salts and K2 spice, all schedule I substances.

Mr. Hmedian was indicted on two counts of aggravated trafficking in drugs; two counts of aggravated possession of drugs; and one count of illegal use of supplemental nutritional benefits. Mr. Hmedian filed a motion to suppress evidence obtained as a result of the search, which the trial court denied.

In a superseding indictment filed a several months later, Mr. Hmedian was indicted on one count of aggravated trafficking in drugs, one count of aggravated possession of drugs, and one count of illegal use of supplemental nutritional benefits. He entered a plea of no contest to the charges. The trial court found him guilty of the charges and sentenced him to a total term of two years in prison.

On appeal Mr. Hmedian argued that the trial court 1) erred in denying is motion to suppress, and 2) abused its discretion when it excluded evidence regarding police officers employed at his store during the time period of the alleged criminal activity.

Mr. Hmedian maintained that the trial court should have granted the motion to suppress because there wasn’t sufficient probable cause to support the search warrant for his store, violating of the Fourth Amendment’s protection from unreasonable searches and seizures of persons or their property. When issuing a search warrant, a trial judge or magistrate must make a practical common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence will be found in a particular place.

A reviewing court must give great deference to the issuing judge’s determination of probable cause. Search warrants and their accompanying affidavits enjoy a presumption of validity. Accordingly, the Fifth District had to determine if the detective on the case provided a substantial basis for the trial court to determine if there was a fair probability Schedule I controlled substances and other inventory used to commit the crime of trafficking in a controlled substance were present in Mr. Hmedian’s place of business.

The controlled buys yielded a positive result for a controlled substance, however Mr. Hmedian argues the evidence was stale at the time of the search. Whether information is stale in the context of a search warrant turns on several factors such as whether the crime was a chance encounter or a regenerating conspiracy, whether the criminal was nomadic or entrenched to an area, whether the thing being seized is perishable and easily transferable or of enduring utility to its holder, and whether the place to be searched is a mere criminal forum of convenience or a secure base of operation. In the context of most drug crimes, information goes stale very quickly because drugs are usually sold and consumed in a prompt fashion.

The Fifth District found that the time lapse of less than two months between the first two buys and the issuance of the search warrant did not sufficiently outweigh the probability evidence that a drug crime would still be found in the location. The officer was familiar with Mr. Hmdeian and the location, and Mr. Hmdeian was involved in a continuing operation of selling controlled substances from his place of business. As a result the Fifth District overruled the first assignment of error.

For the second assignment error, Mr. Hmdeian argued that the trial court erred in not allowing testimony that would establish that he did not sell the substances to the undercover officers knowingly. The state filed a motion in limine to preclude the evidence and the trial court granted the motion finding that its probative value was substantially outweighed by the chance of prejudicing the jury, the case and confusing the jury. Because a motion in limine is an interlocutory ruling, it must be raised at trial. Mr. Hmedeian pled no contest which waived the issue for appeal. Therefore, the Fifth District overruled the second assignment of error.

State v. David B. Brown: On August 10, 2011, David B. Brown fired upon a Health Department mosquito sprayer truck that was making a routine drive through the city. When David B. Brown observed the truck coming down his street he ended up chasing it on his bike. He then fired three shots into the vehicle, injuring the driver Ronald Dierks. Mr. Brown had been drinking and was agitated, telling two of his neighbors, Katrina Walker and Tonya Miller, that the truck was spraying poison trying to kill them and was ruining his organic garden.

On June 13, 2012, Mr. Brown appeared before a trial court and entered pleas of guilty to felonious assault, discharge of firearm on prohibited premises, tampering with evidence, and related firearm and forfeiture specifications. In exchange, a charge of attempted murder was dismissed and the forfeiture specification was amended to permit Mr. Brown to keep firearms not related to the offense.

Prior to the sentencing hearing, Mr. Brown sent letters to the trial court indicating he wanted to withdraw his guilty pleas, but the trial court denied the motion. He was sentenced to an aggregate prison term of 7 years and 9 months. Mr. Brown then appealed from the Judgment Entry of conviction and sentence arguing the trial court should have permitted him to withdraw his guilty pleas. By Judgment entry filed on July 26, 2013, Mr. Brown’s pleas of guilty were withdrawn, his initial pleas of not guilty to the original offenses, including attempted murder, were reinstated, and his convictions and sentences were vacated.

The matter proceeded to trial by jury where he was found guilty and sentenced to a prison term of four years for attempted murder, consecutive to three years on the accompanying firearm specification. These terms were consecutive to terms of nine months for tampering with evidence and consecutive with a one year term for the accompanying firearm specification. The aggregate prison term imposed was eight years and nine months.

Mr. Brown appealed the conviction claiming three assignments of error: 1) the trial court erred in allowing the testimony of an officer, who admitted he was not an expert in ballistics, to testify on matters requiring expert knowledge in ballistics; 2) the trial court erred in disallowing defense counsel to impeach the credibility of state’s witness Katrina Walker; and 3) the trial court erred in refusing to instruct the jury about the mistake-of-fact defense.

The Fifth District disagreed with his first assignment of error. The Court pointed to the fact that the officer was with the police for 27 years and received training as an evidence technician. The Court also mentioned that his testimony did not relate to matters outside the jury’s experience or knowledge and did not require scientific, technical or specialized information. The officer made no claims to specialize in “ballistics” but testified that he could observe the directionality of a bullet, testimony which was supported by the State’s exhibits. His testimony was limited to his observations which the Court found to be within the scope of what an average person could readily observe including the placement of the bullet holes on the vehicle and the injury to Dierk’s leg which was consistent with a bullet wound. The Fifth District overruled the assignment of error because his testimony was not offered as an expert but rather was based upon his own perception and personal and work-related experiences.

The Fifth District also disagreed with the second assignment of error. Katrina Walker was Mr. Brown’s neighbor who was visiting his home for a cookout during the night of the incident. Mr. Brown argued that he should have been permitted to introduce evidence of Ms. Walker’s alleged alcohol problem which might have impaired her memory. The Court found that the record was devoid of any foundation for such a claim. Questions regarding a witness’s purported drinking problem are improper where there is no foundation the witness was drinking on the subject day or that her ability to recall events was impaired and violates Evid.R. 608.

Mr. Brown further insisted that Walker’s credibility was paramount because she provided “the ultimate dispositive fact:” the only evidence of his intent to kill Dierks. The Fifth District disagreed with this premise because photographic evidence of three bullet holes direct into the passenger compartment of the sprayer truck opposed any claims he had only shot at the tanks of the truck.

Finally, the Fifth District disagreed with the third assignment of error regarding instructing the jury about mistake-of-fact to show that Mr. Brown was intoxicated when he shot the truck and did not have the requisite intent for attempted murder. The Court, however, found that the request for mistake-of-fact instruction had nothing to do with his voluntary intoxication. Instead, the defense counsel argued that Mr. Brown loaded the firearm with “home defense loads” and he, therefore, had a good-faith belief the bullets could not penetrate the truck. The Fifth District maintained that the trial court properly declined to give the requested instruction because insufficient evidence existed for this claim. Mr. Brown waived his right to raise the issue on appeal because the argument that voluntary intoxication kept him from having the requisite intent was not raised before the trial court in support of mistake-of-fact instruction.

State of Ohio v. Jesse James Baker: Jesse James Baker appealed a judgment that overruled his motion to withdraw his guilty plea. Mr. Baker was indicted in two separate cases relating to drug charges, which were eventually joined. Mr. Baker entered guilty pleas for Illegal Assembly of Possession of Chemicals/Methamphetamine, Possession of Heroin, and Weapons Under Disability. In addition, he pled guilty to a firearm specification which carried a one-year mandatory prison sentence. He further consented and stipulated to the property forfeiture specification contained in the indictment. All other remaining Counts were dismissed.

After his plea, the trial judge granted Mr. Baker an “O.R.” bond with certain reporting conditions. However, a bench warrant was subsequently issued due to Mr. Baker’s failure to comply with the reporting requirements of the bond. He also failed to appear at his sentencing date, but was eventually located in the State of Illinois and arrested. Prior to the sentence being imposed, Mr. Brown had moved to withdraw his guilty plea, which the trial court denied. When he appeared for the next sentencing, the original sentencing was filed. Mr. Brown later filed a notice of appeal to the Fifth District challenging the trial court’s denial of his motion to withdraw his guilty pleas. The Fifth District concluded that the trial court had abused its discretion in denying Mr. Brown’s motion to withdraw his guilty pleas. The Court vacated his convictions and sentences, finding his remaining assigned errors moot. The case was then remanded for further proceedings.

Upon remand, Mr. Brown filed several pro se motions. After obtaining new counsel the pro se motions were consolidated. The trial court conducted a pre-trial hearing and overruled the consolidated motions, including all motions to suppress.

Prior to the commencement of a jury trial Mr. Brown and the State reached a plea deal where Mr. Brown plead guilty to five counts: Illegal manufacture of methamphetamine, illegal assembly or possession of chemicals for methamphetamine, with a firearm specification, possession of methamphetamine, possession of heroin, and having a weapon under a disability. In exchange, the remaining charges would be dismissed. The State further agreed to a recommendation of five years, of which: counts eight and count two have a total mandatory of three and one years, four years mandatory. The state also further agreed to waive any fine and costs, on either of the two cases.

Mr. Brown filed a notice of appeal to the Fifth District, challenging the court’s failure to waive fines and costs in accordance with the plea agreement. The Fifth District reversed the court’s judgment concerning fines and costs and the trial court issued a nunc pro tunc sentencing, waiving court costs and fines.

Mr. Brown then filed a pro se motion to withdraw his guilty plea, arguing that the court broke the plea agreement by assessing him court costs. The trial court overruled the motion and Mr. Brown filed an appeal to the Fifth District claiming ineffective assistance of both trial and appellate counsel.

Mr. Brown argued that counsel was ineffective for failing to follow up on the trial court order requiring fines and costs to be waived in his failure to appear conviction in 2012. He argued that in exchange for dismissing his appeal the State agreed to waive fines and court costs.

The Fifth District overruled Mr. Brown’s assignment of error. Mr. Brown’s argument was directed to his conviction for failure to appear, which the Fifth District noted was a separate case in both the trial court and there Court from the instant case overruling his motion to withdraw his guilty plea. His arguments were not properly before the Court in the instant case. He assigned no error to the judgment appealed from the instant case.

State of Ohio v. Frank E. Tyson: Frank E. Tyson was found guilty of kidnapping, burglary, failure to comply with the order or signal of a police officer, receiving stolen property, and grand theft of a motor vehicle. He was sentenced to a total of twenty-four years in prison. He then filed a direct appeal and the Fifth District affirmed his conviction and sentence.

Mr. Tyson then filed a motion for a new trial under Crim. R. 33(B). Via a judgment entry, the trial court denied said motion as untimely. Mr. Tyson then appealed the decision to the Fifth District which affirmed the trial court’s denial of a new trial.

Mr. Tyson also filed a petition for post-conviction relief. Via judgment entry, the trial court overruled the petition, finding that he had failed to meet jurisdictional requirements.

Mr. Tyson then filed a motion requesting resentencing with proper post-release control notification. The trial court conducted a limited resentencing hearing on issued a resentencing judgment entry, denying his motion. Mr. Tyson then filed an appeal asserting the trial court had erred in not conducting a “full de novo resentencing hearing.” The Fifth District affirmed the decision of the trial court.

Several years later, Mr. Tyson filed a motion for resentencing based on the fact he had completed his sentence for kidnapping at the time the trial court re-advised him of his post-release control obligations. In accordance with State v. Holdcroft, the trial court conducted a review/resentencing hearing and vacated the post-release control previously imposed for his kidnapping conviction and re-advised him of the remaining valid portions of his post-release control requirements.

In Mr. Tyson’ latest appeal he raised three assignments of error: 1) The trial court erred in not issuing a final appealable order because it failed to properly sentence the appellant per Crim.R.32 and State of Ohio case law; 2) Mr. Tyson has yet to be properly sentenced for his conviction of failure to comply for the reasons stated in assignment error one, therefore said sentence is void and must be sentenced as a misdemeanor per Ohio Supreme Court Case law; and 3) His sentence for kidnapping was vacated after he served said sentence, however, due to the improper notification of post-release control the conviction remains unsentenced and cannot be reinstated.

Mr. Tyson’s first and second assignments of error essentially argue that the trial court erred in originally failing to properly sentence him on his conviction for failure to comply with the order of a police officer, and therefore he is entitled to further resentencing or have said offense treated as a misdemeanor.

Holdcroft, states that where an appellant has already served his prison sentence on an offense, he may not be resentenced to post-release control on that offense, regardless of whether the offender is still in prison for other offenses. However, under State v. Fischer, if a defendant is under a sentence in which post-release control was not properly rendered, the offending portion of the sentence dealing with post-release control is subject to review and correction. The new sentencing hearing to which the offender is entitled to is limited to the issue of post-release control.

The Fifth District noted that Mr. Tyson specifically asserted the original sentencing entry and/or verdict from his trial failed to properly include a description of the offense, the full statutory nomenclature, and the level offense. The Fifth District found that these issues could have been raised on direct appeal and do not arise from the trial court’s review hearing. Therefore the claims are barred by the doctrine of res judicata and the Court denied Mr. Tyson’s first and second assignments of error.

The Fifth District also denied his third assignment of error where he argued that his entire sentence for kidnapping was now void and that his kidnapping conviction “cannot be reinstated,” and that therefore the matter must be remanded again for full resentencing in order to reflect this.

Mr. Tyson’s argument was that specific case law from Fischer never applied to the kidnapping portion of his case, because he had completed his sentence on that count before the Ohio Supreme Court decided Fischer. However, the Fifth District approved of the application of Fischer to Mr. Tyson’s resentencing hearing, finding that he had been properly granted a hearing “limited to the correction of the imposition of post-release control.” Mr. Tyson had unsuccessfully sought reconsideration under App.R. 26(A) and no appeal was taken to the Ohio Supreme Court. Accordingly, the Fifth District held that the general applicability of Fisher to Mr. Tyson because the law of the case, and the trial court’s treatment of the kidnapping conviction in the subsequent Holdcroft review/resentencing hearing was not erroneous on that basis.

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