Pat Carroll

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Traffic Signals — June 2024

TRAFFIC SIGNALS NEWSLETTER

Dear Colleagues,July 8, 2024

This newsletter sets out 1) a summary of Ohio court decisions issued last month concerning impaired driving, alcohol and drugs of abuse, and other procedural related issues that may be raised in these cases and 2) upcoming education opportunities. While not all of the cases involve impaired driving, they raise pretrial and post-judgment issues that would apply to OVI and vehicular homicide and assault cases.

As a judge for thirty two years, I understand the time constraints and difficulty with keeping up with recent court decisions. As the Ohio Judicial Outreach Liaison with the American Bar Association, I want to provide current case law and other information to you.

I am grateful to Paul Pfeifer, Trina Bennington, and the Ohio Judicial Conference staff for assistance in the distribution of the newsletter. Please feel free to call or email me with any feedback.

Patrick Carroll, retired judge

Ohio Judicial Outreach Liaison to the ABA

Carrolljol26@gmail.com

(216) 403-5521

I. Summary of cases, June, 2024.

Impaired driving evidence

  1. General

State v. Ross, 2024-Ohio-2251(9th. Dist.). Felony OVI conviction was affirmed. The court found that the officer’s testimony seeing the defendant drive in circles around a construction area was sufficient to support the defendant’s operation of the vehicle without the officer’s body cam or the police car’s dash cam videos.

On the issue of being under the influence, the court noted for OVI prosecutions, the state was not required to establish a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. (Par. 12. Citations omitted.).   “To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person's physical and mental ability to drive was impaired.”  (Par. 12. Citations omitted.)

On the issue of being under the influence, the court found testimony by the officers that the defendant was disheveled, stumbling, leaning on a vehicle or one of the officers for support, slurred speech, uncooperative behavior, odor of alcohol, and an admission of drinking that day was sufficient evidence to support the OVI conviction. The court also noted that the officers were not required to take the defendant to a hospital for a blood test after he refused the breath test.

State /Vermillion v. Powell, 2024-Ohio-2381 (6th. Dist. ). Order overruling motion to suppress and OVI conviction were affirmed. The defendant asserted lack of reasonable, articulable suspicion of impairment based on the officer’s observation of an odor of alcohol from the vehicle and an admission to alcohol consumption earlier in the day, without any time of reference.1 (Par. 12.). The defendant was stopped by the officer after passing multiple vehicles traveling at rates of speed between 96 and 115 M.p.h. The defendant also failed to keep his vehicle within the roadway boundary lines during the officer’s pursuit. The court found this evidence combined with an open beer car in the car console, glassy, bloodshot eyes, and fumbling to retrieve his paperwork for the officer was sufficient to permit the officer to detain the defendant for field sobriety tests after the traffic stop.

State v. Thompson, 2024-Ohio-2112 (12th. Dist.). Convictions for intimidation, felony OVI, and having weapons under disability (after merger with improper handling of a firearm in a motor vehicle) after a jury trial were affirmed. The defendant initiated a course of conduct over a two year period of making several ranting and insulting calls per day to the sheriff’s office. As time passed the calls became more threatening, culminating on September 21, 2021 with threats of violence and physical harm to the sheriff and staff. Security measures were implemented based on the calls.

Later that day a sheriff’s deputy saw the defendant in a white van yelling at another deputy. The deputy approached the defendant’s van to ask why he was upset. The deputy characterized the defendant’s response as “scattered and aggressively responded with profanities and slurred speech, indicating that he was intoxicated.” (Par. 4.). The defendant drove off ignoring both calls by the deputy and lights and sirens in pursuit, finally stopping at a blocked entrance. The defendant had a loaded handgun on the center console. The defendant had glassy, bloodshot eyes and smelled of alcohol. In response to an inquiry if he had been drinking, the defendant told the deputy he was allowed to drink and smoke marijuana in his van. The defendant was unsteady as he got out of the van. He refused to take any field sobriety tests. At the trial the defendant stipulated to three prior OVI convictions.

OVI conviction

The defendant also asserted the OVI conviction was against the weight of the evidence due to the lack of field sobriety tests. In rejecting this claim and reviewing the evidence in the record, the court held a conviction under R.C. 4511.19(A)(1) for impaired driving does not require the introduction of any results of chemical testing to meet the elements of the offense. (Par. 16, citations omitted.). "The amount of alcohol found as a result of the chemical testing of bodily substances is only of secondary interest. The defendant's ability to perceive, make judgments, coordinate movements, and safely operate a vehicle is at issue in the prosecution of a defendant under such section." relying on Newark v. Lucas, 40 Ohio St.3d 100, 104 (1988). (Par. 16.). The court found the evidence of the defendant’s impairment and operation was sufficient to support the OVI conviction.

Intimidation conviction

On appeal, concerning the conviction for intimidation, the defendant asserted insufficient evidence of a subjective understanding of the threatening nature of his statements to the sheriff’s dispatcher. The appellate court found the defendant’s multiple phone calls contained specific threats, which included a threat to show up with a loaded shotgun and inflict death on the dispatchers, were clearly intended to intimidate the dispatchers into abandoning their duties went beyond the scope of a call to speak with the sheriff.  (Par. 16).

Regarding the imposition of consecutive sentences, the court found the defendant’s record of five prior OVI convictions, lack of favorable response to previous sanctions, and the fear and psychological harm he caused to the dispatchers supported the trial court’s judgment.

Sovereign citizen issues

The defendant also challenged the firearm convictions on appeal on the ground of being a sovereign citizen and not a “person” subject to Ohio laws. Regarding the sufficiency of the evidence, the court found the close proximity of the gun and other evidence was sufficient to established constructive possession. In addition, the court noted the defendant’s letter to the trial court while the charges were pending specifically describing the gun and asking for its return. (Par. 45.). Regarding his claim as “an American State National, an alien, nonresident of D.C.” not subject to Ohio laws, the court stated, these "sovereign citizen" legal theories have no basis in law and such arguments have been "soundly rejected by every court that has been given the opportunity to do so." See, e.g., State v. Miller, 2018-Ohio-4258 (12th. Dist.). (Par. 46.). The court also noted the defendant’s unusual conduct at trial was driven by his ideology from his sovereign citizen beliefs and not from any mental defect impacting his capability to understand the nature and objective of the proceedings against him and assist in his own defense. (Par. 40.).

Author’s Note: In Counterman v. Colorado, 600 U.S. 66 (2023, the U.S. Supreme Court held the First Amendment required the State to show not only that the defendant’s statements were objectively threatening, but also that he was aware of their threatening character. The state must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. The Counterman standard has been incorporated in Ohio Jury Instructions. See, e.g. OJI-CR-417.35 (threat), OJI-CR 503.21 (aggravated menacing), and OJI-CR 503.211(menacing by stalking).

  1. Underage consumption

State v. Lopez, 2024-Ohio-2394 (7th. Dist.). Order overruling motion to suppress and conviction for operating a vehicle after underage alcohol consumption ("OVUAC") were affirmed. The defendant, twenty years old, was stopped for speeding coming home from his job at Wendy’s at 2:30 a.m. In response to a request for his driver’s license, the defendant gave the officer his limited driving privilege order from a prior physical control conviction. Although the officer testified he smelled an alcoholic beverage from the car, the defendant continually denied any alcohol consumption. After field sobriety tests were performed, the defendant was arrested for OVI. The defendant entered a plea of no contest to an amended charge of OVUAC and raised by motion to suppress 1) reasonable suspicion to conduct the field sobriety tests and 2) probable cause for arrest.

Reasonable suspicion to conduct the field sobriety tests.

Although the original traffic stop for speeding was not disputed, the defendant asserted the officer did not have reasonable articulable suspicion that criminal activity had occurred. The court in Lopez recognized the signs of impairment necessary to demonstrate reasonable suspicion to administer a field sobriety test under the OVUAC .02 limit are considered differently than under the adult standard, relying on State v. Burkhart, 2016-Ohio-7534 (4th. Dist.) and Cleveland v. Machnics, 2012 Ohio Misc. LEXIS 241 (M.C. 2012) (Noting that with a reduced prohibited blood alcohol level it is unlikely that a suspect's speech, behavior or coordination will be noticeably impaired. ) (Par. 37, 47.).

The court found, based on the time of day, the defendant’s age, odor of an alcoholic beverage emanating from an otherwise unoccupied vehicle, and bloodshot eyes was sufficient to establish reasonable suspicion. Although the defendant denied consuming any alcohol, the court pointed out that unlike an adult, admission of alcohol consumption by the defendant would also be an admission of criminal behavior. (Par. 44.). The court also noted the inconsistent explanation about the one and a half hour delay from the time the business closed.

Probable cause for arrest.

The field sobriety test results 1) HGN (4 of 6 clues), 2) walk and turn (2 of 8 clues), and 3) one leg stand (1 of 4 clues). The court noted, however, probable cause to arrest someone for OVI may exist without the administration of any field sobriety tests based on the totality of the circumstances. The totality of the facts and circumstances can support a finding of probable cause to arrest even when no field sobriety tests were given, or when the test results were excluded because of failure to comply with standardized testing procedures. (Par. 50, citations omitted.).  The facts which constitute probable cause to arrest an underage driver are different from the facts necessary to constitute probable cause to arrest an adult driver.

Because the prohibited amount of blood alcohol in an underage driver is so minimal, an arresting officer must look for more subtle evidence of drinking, and evidence of only very slight impairment of performance. (State v. Stidham, 3d. Dist. Logan, No. 8-97-34 3d. Dist. Mar. 27, 1998). (Par. 51.). The court noted other appellate districts that have adopted this same standard. See, Village of Kirtland Hills v. Fuhrman, 11th Dist. 2008-Ohio-2123 (11th. Dist.); Columbus v. Weber, 2007-Ohio-5446 (10th Dist.); State v. Knight, 2005-Ohio-6951 (5th Dist.); and State v. Gibson (Mar. 17, 2000), 4th Dist. Ross No. 99CA2516. (all citing Stidham). (Par. 51.). The court found with the low blood/alcohol level involved, the scant field sobriety test results, along with the defendant’s observable conduct, there was sufficient evidence of probable cause for the arrest.

OVI elements of offense

  1. Vehicle

State v. Miller, 2024-Ohio-2217 (11th. Dist.). OVI conviction in horse-driven buggy affirmed. A motorist called the police that the buggy was weaving and going left of center. The driver was slumped over and asleep as the buggy travelled down the road. R.C. 4511.01(A) defines “vehicle” as “every device, including a motorized bicycle and an electric bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway. . .” The court found the buggy was a piece of equipment designed for transportation utilizing horses to "draw" the "device," and therefore a vehicle within the meaning of R.C. 4511.01(A). (Par. 15.). In arriving at this conclusion, the court noted a horse-drawn buggy, operated unsafely or while a person is under the influence, invokes the same public-policy safety concerns as an impaired driver of a motor vehicle. (Par. 19.)

Author’s Note: A horse is not a vehicle within the meaning of R.C. 4511.01for an OVI offense. State v. Euton, 77 Ohio Misc. 2d 19 (Mun. Ct. 1996).

  1. Venue.

State v. Smith, 2024-Ohio-2189 (1st. Dist.). OVI and using weapons while intoxicated convictions reversed for lack of proof of venue. Although venue is not an element of an offense, a criminal defendant is to be tried in the county in which the offense is alleged to have occurred. Art. 1, Sec. 10, Ohio Const. and R.C. 2901.12 confers subject-matter jurisdiction upon a trial court in the territory of which the offense or any element thereof was committed. Therefore, venue must be proved by the state beyond a reasonable doubt. (Par. 16.)

In this case the officers testified to the street location, but not the specific city or county. The appellate court held identification of street names, both with and without other evidence of location, has been held insufficient to establish venue. Other evidence, including the township employing the officers, was held not to be sufficient to establish venue.

The dissent asserted venue need not be proven in express terms as long as it is clear from the evidence that no other inference can reasonably be drawn by the finder of fact than the offense occurred within the jurisdiction of the court. (Par. 34, citation omitted.) Although testimony showing that an offense occurred at a particular street address, standing alone, is generally insufficient to prove venue, because the address may not be 'sufficiently unique' to conclude the address is located in a particular city or county, a street address in combination with testimony that a certain locality's investigative body was assigned to the alleged crime is sufficient to establish venue. (Par. 35, citations omitted.)

  1. OVI in Aggravated Vehicular Homicide.

State v. Whitaker, 2024-Ohio-2495, (6th. Dist.). Convictions for aggravated vehicular homicide and vehicular assault were affirmed, but reversed on the issue of restitution.

Aggravated vehicular homicide conviction.

While driving home from work the defendant crossed the centerline at a high rate of speed and collided with an oncoming car, killing the driver and severely injuring a passenger in the other car. Before leaving work, the defendant had been drinking. A search warrant for a blood draw that returned a blood alcohol level of the Defendant to be .27 BAC. A urine screen also showed positive marijuana results. The defendant entered pleas of no contest to aggravated vehicular homicide and vehicular assault

R.C. 2903.06(A)(1)(a), aggravated vehicular homicide, provides in part that no person, while operating or participating in the operation of a motor vehicle * * *, shall cause the death of as the proximate result of committing a violation of R.C. 4511.19(A) or of a substantially equivalent municipal ordinance. The defendant asserted on appeal he could not be found guilty of aggravated vehicular homicide because he was not charged or found guilty of OVI under R.C. 4511.19.

On appeal the court held R.C. 2903.06(A)(1)(a) requires only that the defendant must have caused the death of another as a proximate result of "committing a violation of" R.C. 4511.19(A). Thus, the state must establish the elements of an offense under R.C. 4511.19(A) to support a conviction under R.C. 2903.06(A)(1)(a). (Par. 27, emphasis in the original.). An OVI conviction, however, is not an element of the offense as long as the prosecution can established each element under both statutes. The appellate court found, based on the facts set out in the record on the defendant’s no contest plea, there was sufficient evidence to support the elements of both aggravated vehicular homicide and OVI.

Restitution

The restitution order to the decedent’s family included an amount of $58,000. This represented the amount paid out by the decedent’s health insurance company for medical expenses. The insurance company was seeking reimbursement for this amount. The appellate court found the trial court's intent was clearly to pass the award for medical expenses, already paid, through the family to resolve an unidentified "lawsuit" between the insurer and its insured. (Par. 36.).

Restitution is compensation for a victim's economic losses suffered as a direct and proximate result of the commission of the offense and insurance companies may not receive restitution for economic losses after they reimburse a customer for a loss covered by an insurance policy. (Par. 36-37. Citations omitted.). The court found the order of restitution was not supported with evidence of expenses that directly and proximately arose from the commission of the offense, and no evidence that "the family" incurred those expenses. (Par. 41.). Rather, the restitution was ordered to cover a third party's economic loss, and therefore, was reversible as plain error. 

State v. Shine, 2024-Ohio-2326 (11th. Dist.). Convictions for aggravated vehicular homicide and vehicular assault were affirmed. The defendant was driving within the 55 mph speed limit when he looked down at his phone and crashed into the back of a car that had stopped to make a left hand turn. The other car was propelled forward, with one occupant killed and two others seriously injured. The collision was partially recorded from a nearby house ring video. Based on the evidence of the defendant taking his eyes off the road while travelling at a high rate of speed, along with an admission of bad brakes and a suspended license, there was sufficient evidence to support the conviction.

Anders procedure

Judge Trapp succinctly described the procedure, as set out in Anders v. California, 386 U.S. 738 (1967), in which “the Supreme Court of the United States held that if appellate counsel, after a conscientious examination of the record, finds an appeal to be wholly frivolous, he or she should advise the court and request permission to withdraw. Id. at 744. This request to withdraw must be accompanied by a brief citing anything in the record that could arguably support an appeal. Id. Further, counsel must furnish his or her client with a copy of the brief and the request to withdraw, and give the client an opportunity to raise any additional issues. Id. Once these requirements have been met, the appellate court must review the entire record to determine whether the appeal is wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant counsel's motion to withdraw and proceed to a decision on the merits. Id. If, however, the court concludes the appeal is not frivolous, it must appoint new counsel. Id.” (Par. 20.)

OVI dismissal issues

State v. Baca, 2024-Ohio-2304 (12th. Dist.) Order overruling a motion for limited driving privileges was reversed. The defendant refused breath test on arrest of second OVI offense in ten years, resulting in a two-year administrative license suspension (ALS). One month later, upon motion of the prosecutor, the OVI charge was dismissed. Five months later the defendant filed a notice of appeal of the ALS. After a hearing was conducted, the court dismissed the appeal as not being timely filed within thirty days from the initial appearance as required by R.C. 4511.197(A). The defendant later filed a motion for limited driving privileges for the balance of the ALS which was denied by the court for lack of jurisdiction.

On appeal the court held that the time limit to appeal an ALS is jurisdictional, but R.C. 4511.197(A) does not apply to a motion for limited driving privileges. The appellate court held the trial court could consider limited driving privileges under R.C. 4510.02. In doing so, the court recognized the driving privilege provision for an ALS under 4511.197(E) only applied when the case is pending and not applicable in this situation because the case had been dismissed.

State v. Quinn, 2024-Ohio-2194, (2d. Dist.). Order requiring OSHP to pay storage and towing costs was reversed. The defendant was indicted for OVI and improperly handling a firearm in a motor vehicle. Although the defendant had a prior OVI conviction within the past ten years, the defendant was not charged with the prior offense. The defendant’s car and license plates were impounded. Upon defendant’s motion and after 90 days, the Ohio State Highway Patrol was ordered to release the car and plates and pay the storage and towing costs. The defendant later entered a no contest plea to an amended charge of physical control under the influence.

R.C. 4511.195(B)(1)(a) requires the arresting officer to seize the vehicle and plates if 1) the vehicle is in the defendant’s name, and 2) the defendant has one or more OVI convictions in the past ten years. R.C. 4511.195(D) provides the defendant shall pay the towing and storage costs upon release of the vehicle unless the impoundment of the vehicle was not authorized. Assessing the storage and towing costs against the police is only permitted if the vehicle tow was unauthorized by statute. R.C. 4511.195(D)(4).

Because of the defendant’s prior OVI conviction within ten years, the officers were required to tow and impound the car and the defendant was required to pay the storage and towing costs. The defendant asserted because he was not charged in the indictment of having a prior OVI conviction, R.C. 4511.195 did not apply. The appellate court held, however, R.C. 4511.195((B) does not require the defendant to be formally charged with having more than one OVI conviction within 10 years, but rather only requires such a prior OVI conviction exists. (Par. 21.).

The court also found the ninety days impoundment for a second OVI conviction under R.C. 4511.19(G) only applied as part of a post judgment sentence and did not impose any time limit for pretrial release. (Par. 23.) Similarly, the later amendment of the OVI charge to physical control of the vehicle under the influence did not undermine the officer’s authority to impound the vehicle at the time of the arrest. If an OVI charge is dismissed, the trial court has discretion to impose the costs on either the defendant or the specific local government or officers. R.C. 4511.195(B)(4). In this case, however, the car was released before the OVI charge was amended, and therefore, the court did not have discretion to impose the costs on the government. The court noted the legislative intent to impose storage and towing costs on the defendant unless the vehicle impoundment was unauthorized at the time it was seized. (Par. 26.).

OVI Fines.

State v. Moore, 2024-Ohio-2382 (2d. Dist.). OVI and aggravated drug possession convictions affirmed. The defendant did not dispute the OVI conviction, only the $1,000 fine based on her ability to pay. With a prior OVI conviction in the past ten years, there was a mandatory fine of $525.00 to $1,625.00. R.C. 4511.19(G)(1)(b). Because of the mandatory sentencing language in R.C. 4511.19, the trial court was not required to consider the defendant’s ability to pay the fine. In addition, the trial court imposed the fine strictly applied to the OVI conviction concurrent with the felony drug conviction, so R.C. 2929.28, regarding ability to pay did not apply.

The court in Moore noted R.C. 4511.19 was enacted to criminalize intoxicated driving and established penalties designed to deter people from driving while intoxicated in order to protect Ohioans and their property from the damage that may follow. The General Assembly "did not treat all impaired drivers equally in R.C. 4511.19, “but enacted a graduated sentencing scheme that escalates an offender's punishment based on how many times the offender has been previously convicted of an OVI offense," (Par. 19.Citations omitted.)

Speeding issues

State v. Smead, 2024-Ohio-2222 (3d. Dist.). Speeding conviction affirmed. The court distinguished between a speeding offense under:

R..C. 4511.21(A), regarding a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions or at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead, and

R.C. 4511.21(D) which is a per se offense based on the posted speed limit for that street or roadway.

Although a charge under R.C. 4511.21(A) has a rebuttable presumption of the speed being reasonable for the conditions, under R.C. 4511.21(D), the reasonableness of the speed under the circumstances is not relevant. (Par. 11, citations omitted.).

State v. Kepler, 2024-Ohio-2283 (6th. Dist.). Conviction for speeding and license suspension for reckless operation under R.C. 4510.15 was affirmed. R.C. 4510.15 authorizes a court to add an additional license suspension penalty when the court makes a finding of recklessness. A conviction for reckless operation in violation of R.C. 4511.20 is not required to impose a license suspension under R.C. 4510.15, and a speeding violation under R.C. 4511.21 can "relat[e] to reckless operation." (Par. 14.). Instead, the license suspension is an additional penalty the court may impose based on the facts of the underlying traffic offense.

R.C. 4510.15 demonstrates the General Assembly's intent to give the trial court authority to impose a license suspension when a defendant is guilty of something less than recklessness, as defined in R.C. 2901.22, after being found guilty of violating a moving traffic offense other than R.C. 4511.29 (reckless operation). (Par. 14.).

The defendant was originally cited for going108 in a 55 mph one, which was amended to 79 in a 55 mph zone. As such, any suspension for excessive speed must be based on the amended, not the original charge. The court held that a finding of recklessness must be based on both the driving and the surrounding circumstances and an excessive rate of speed by itself may not be sufficient to establish recklessness. In the present case, based on the markings on the traffic ticket and the defendant’s no contest plea, the defendant was driving on a wet, two-lane road, in the rain, at night, and around some number of other drivers. (Par. 16.). Combined with the amended rate of speed, the license suspension was supported by the record.

Texting while driving – burden of proof.

State v. Havens, 2024-Ohio-2204 5th. Dist.). Conviction for driving while texting violation was affirmed. R.C. 4511.204(A) prohibits holding or using a cell phone while driving on any street, highway, or property open to the public for vehicular traffic. R.C 4511.204(B) sets out thirteen exceptions for permissible cell phone use in vehicles. The court in Havens held the thirteen exceptions were affirmative defenses and therefore, the burden was on the defendant to show the statutory prohibition did not apply.

In a criminal case an affirmative defense involves excuse or justification and is either 1) expressly designated by statute or 2) involving an excuse or justification peculiarly within the knowledge of the accused. R.C. 2901.05(D)(1). In the present case the court pointed out numerous examples in which the specific use of the phone to determine if the use was within the exception would be for the officer to examine the phone. R.C. 4511.204 (G)(2), however, expressly prohibits an officer from taking the phone without the driver’s consent of by search warrant. “This further suggests the legislature intended the driver to come forward with evidence in support of his or her legal excuse for using the device.” (Par. 18). Construing the language of the statute, the court held the legislative intent was to create affirmative defenses rather than elements. (Par. 18.)

Author’s note: Many criminal offenses in Ohio contain statutory exceptions without specific designation as an affirmative defense. See, State v. Durbin, 2012-Ohio-301 (9th. Dist). which holds that the exception is either an element of the offense that the state must prove beyond a reasonable doubt or an affirmative defense that a defendant must prove. R.C. Chap. 29 alone has over eighty felony or misdemeanor offenses that contain the “does not apply” exception to criminal liability. When a criminal offenses involves a statutory exception, the court must determine if the exception is an affirmative defense or a statutory exemption that the prosecution must prove does not apply. See, State v. Nucklos, 121 Ohio St. 3d 332, 2009-Ohio-792. For many specific criminal offenses, Ohio Jury Instructions provide guidance to assist in determining if an exception is an affirmative defense or an element of the offense.

Reasonable basis to detain driver.

State v. Zaller, 2024-Ohio-2323 (11th. Dist.) Order overruling motion to suppress was affirmed. The defendant was stopped for an improper turn violation. Because of an object seen in the car was suspected to be a firearm, the officer checked with dispatch to see if the defendant had a CCW permit or warrant. The defendant initially refused to get out of the car when ordered by the officer for safety purposes. After getting out, the defendant began walking away from the officers. The appellate court found the officers were justified in subjecting the defendant to a protective search for weapons based on his agitated, evasive, and erratic behavior. 

Probation Issues.

  1. Revocation procedure issues.

State v. Thoman, 2024-Ohio-2219 (3d. Dist.). Community control supervision (CCS) violation finding affirmed. The defendant was charged with two CCS violations, 1) contact with victim and 2) refusing drug screen. For both violations the probation officer testified based on the police reports. The appellate court held community control revocation hearings are not subject to the rules of evidence and hearsay evidence is admissible. Admission of hearsay evidence in a revocation hearing is discretionary with the court except when that evidence is the only evidence presented and is crucial to a determination of a violation. (Par . 10. Citations omitted). The appellate court explained:

The rationale behind this exception is, given the informality of this type of proceeding, the trier of fact should be able to consider any reliable and relevant evidence to determine whether the probationer has violated the conditions of his probation. * * *Indeed, hearsay evidence can be permissible in a community-control-revocation hearing, even if it would have been inadmissible in a criminal trial. (Par. 10. Citations omitted.)

The court found the probation officer’s testimony was sufficient to support both violations. The “no contact” violation was upheld even though the victim had invited the defendant to return to her home.

State v. Cornett, 2024-Ohio-2396 ( 12th. Dist.). Probation violation for with SCRAM device affirmed. The defendant had been convicted of OVI and endangering children due to child in the car at the time of the offense. With a pending motion for a Daubert hearing, the defendant admitted the violation. In affirming the violation, the court found the defendant waived the requirement that the state present evidence and call witnesses against her.

The defendant had also been charged with consuming alcohol while wearing the SCRAM device, but this violation was withdrawn by the prosecutor. The court found once the state withdrew the allegations of alcohol detection, any evidence regarding the accuracy of the SCRAM bracelet to detect alcohol became irrelevant to the tampering allegation. Once the defendant admitted to tampering with the bracelet, there were no further evidentiary concerns about the accuracy of the device. (fn. 2.)

  1. Probation searches

State v. Apple, 2024-Ohio-2286 (2d. Dist.). Order overruling motion to suppress and convictions for aggravated possession of drugs and having weapons while under disability were affirmed. This case involved the scope of a warrantless search of a probationer’s safe in his bedroom. The police obtained information that the defendant had illegal drugs and firearms at his house, both of which were prohibited by the terms of the defendant’s probation. The defendant’s probation officer went to the defendant’s home in response to the information, being accompanied by police officers due to the possibility of firearms. A marijuana grow operation was discovered at the defendant’s home. A safe was located and after initial refusal, the defendant told the probation officer the combination.

As part of probation, the defendant agreed to a search of his person, car, and place of residence. Drugs and guns were found in the safe and the police obtained a search warrant before removing anything from the safe.

The defendant asserted the search of the safe was unlawful going beyond the scope of the probationer search. The court noted that a warrantless search performed as a probation condition requiring random searches of the probationer’s person, motor vehicle, or place of residence by a probation officer at any time is constitutional as a consent search. (Par. 16. Citations omitted.). R.C. 2951.02(A)(1)(a) permits a probation search if the probation officer has reasonable grounds the defendant is not complying with the law or the probation terms.

The court found the “reasonable grounds to believe” statutory language satisfied the reasonableness requirement of the Fourth Amendment. (Par. 23), relying on Griffin v. Wisconsin, 483 U.S. 686, 874 (1987). Applying a totality of the circumstances test, the court considers the extent the warrantless probationer search intrudes upon an individual's privacy against, the degree to which the search is needed for the promotion of legitimate governmental interests. (Par. 28.) The court noted the probationer's reasonable expectation of privacy is significantly diminished when the probation agreement (conditions of supervision) clearly expresses the condition and unambiguously informs the probationer of the condition. United States v. Knights, 534 U.S. 112, 118-120. (2001). (Par. 29.)

In the present case the court held it was reasonable for a probation officer’s search to include furniture compartments, or in this case, a safe. The court also noted reasonable suspicion of the safe contents was reinforced by the readily apparent marijuana operations, including plastic lined walls, grow lights, and a five foot marijuana plant.

Author’s Note: R.C. 2951.02 was amended, effective 4/4/23 to remove the limitation on a probation officer’s authority to conduct a probationer’s search only when there was a reasonable suspicion that the probationer was not complying with the law or the terms of probation. As amended, the sentencing court must include in the sentencing judgment an order for the defendant to consent to a search as a community control supervision condition.

Although a police officer may accompany a probation officer on the search, if law enforcement rather than probation supervision was the primary purpose of the search without a search warrant, the search in this case would be improper. State v. Muhlenkamp, 2017-Ohio-8269 (3d. Dist.).

Competency issues

State v. Henry, 2024-Ohio-2369 (5h. Dist.). OVI conviction affirmed. In response to the defendant’s motion, the trial court referred the defendant for a competency evaluation. The report found that although the defendant did not participate or cooperate in the evaluation, he was competent to stand trial. Defense counsel did not object to the admissibility of the report but requested a second evaluation to permit the defendant another chance to participate. Defense counsel produced an extensive document from a 2016 Social Security case that discussed his medical history and mental impairments. The trial court considered the request but overruled it, and based on the report, the found the defendant competent. The defendant entered a plea of no contest to the OVI charge and was found guilty.

On appeal, the defendant raised an issue that the trial court relied on a competency report that was not admitted into evidence. A competency report may be admitted by:

  1. Stipulation by the parties, or

  2. Expert testimony involving the evaluation process and report (R.C. 2317.36), with cross examination by the opposing party. (R.C. 2317.37) after notice to the parties. (R.C. 2317.38).

In the present case the court found the trial court timely provided the report to counsel with notice of admitting the report. Defense counsel did not object to the court’s statements nor cross examined the psychologist who prepared the report. Although present in court, both counsel stipulated to the report and excused the psychologist as a witness. The trial court reviewed the report, conducted a hearing, and found the defendant competent. The report noted the defendant’s functional abilities suggest that he exaggerated his impairment. (Par 21.). The trial court's decision of competency is based on reliable, credible evidence. The appellate decision did not note any issue of competency during the plea colloquy.

Trial court procedures

  1. Asking questions and resentencing.

State v. Hough, 2024-Ohio-2430 (10th. Dist.). Convictions for aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, and operating a motor vehicle while under the influence of a drug of abuse were affirmed after retrial. The defendant raised judicial bias on appeal based on the judge asking questions during the jury retrial and imposing a greater sentence. This case involved a head-on collision in which the defendant killed one passenger and severely injured the other driver and two other passengers. The case was reversed due to an unresolved competency motion. On remand the defendant was found competent and re-tried to a jury.

Judge asking questions.

Evidence Rule 614(B) permits a trial court to question witnesses called by a party as long as the questions are relevant, and the questioning is done impartially. (Par. 30. Citations omitted.). The rule allows the court to attempt to ascertain a material fact or to develop the truth and is not partial merely because the evidence elicited during the interrogation was damaging to one of the parties. (Par. 31.).

In this case the appellate court found the trial court’s question to:

  1. a paramedic to explain a medical procedure that was performed at the collision scene was relevant to the testimony and within the parameters of Evid. R. 614(B). (Par. 34.).

  2. another officer about the position of the vehicles from a photograph was posed for the purpose of clarifying material facts and did not qualify as improper examination.(Par. 36.).

  3. a witness on the witness’ training was part of the trial court’s gatekeeping role regarding the qualification and relevancy of expert testimony and did not suggest an opinion about witness credibility or exhibit partiality. (Par. 39.).

  4. a forensic pathologist that any opinion was based upon a reasonable degree of medical certainty and probability was clarifying under what circumstances the witness was permitted to express his medical opinion. (Par. 42.).

  5. the toxicology witness on the defendant’s impairment was based on the defendant’s cocaine use impartially clarified what the court believed was incomplete or confusing testimony. (Par. 45.).

The appellate court also noted that following the trial court's inquiries, the court afforded both sides the opportunity to further question the witnesses and provided curative instructions to the jury at trial.

Claim of vindictive sentence

On re-trial the sentence imposed was three years longer than the sentence imposed in the prior trial. The court noted a trial court may impose a different sentence when a defendant is again convicted after a retrial, but any vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. (Par. 53. Citations omitted.).

Whenever a judge imposes a more severe sentence after a new trial, the judge must affirmatively set out the reason and the factual data upon which the increased sentence is based must be made part of the record for purposes of reviewing the constitutionality of the increased sentence. North Carolina v. Pearce, 395 U.S. 711, 726 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). In Wasman v. United States, 468 U.S. 559, 568, the Court clarified the position in Pearce, supra, that due process does not forbid enhanced sentences or charges unless motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. An enhanced or increased sentence, by the same sentencer, after a new trial and conviction, creates a rebuttable presumption of actual vindictiveness. Wasman, supra at 568-69.

In order to overcome the presumption of vindictiveness, a trial court must make affirmative findings on the record regarding conduct or events that occurred or were discovered after the original sentencing. (Par. 56. Citations omitted.). The information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources." Pearce, supra at 723. In the present case the trial court set out specific findings, including the defendant’s continued misbehavior while in prison after the initial conviction, faked and malingered symptoms of mental illness during his competency evaluation, and further information regarding all the victims of this case, including traumatic effects and injuries that became more aggravated and w far greater than what the victims were aware of at the prior sentencing, as was set out from victim impact testimony. The appellate court found the record supported objective, non-vindictive reasons justifying the increased sentence.

  1. Consecutive misdemeanor/felony sentences.

State /City of Toledo v. Martin, 2024-Ohio-2383 (6th. Dist.). Misdemeanor sentence is not automatically applied concurrently to a subsequent felony sentence. The defendant was sentenced concurrently to 180 days, on two separate misdemeanor charges. At the time of the sentence the defendant was serving a jail sentence from another court in another case. There was also a felony charge in the common pleas court to which the defendant was later found guilty and sentenced to a correctional treatment facility. Although R.C. 2929.41(A) requires any misdemeanor jail sentence to be imposed concurrently with any felony conviction jail sentence, it did not apply to a subsequent felony conviction. The court held the misdemeanor sentence was correct when imposed and may not be impacted by the later felony sentence.

  1. Misdemeanor arrest

Barberton v. Woodarski, 2024-Ohio-2156 (9th. Dist.). Resisting arrest conviction affirmed. The issue before the court was the lawfulness of the arrest for trespass. The officer arrived after the store had closed with the defendant in the parking lot yelling at the store clerks. The court noted as a general rule, an officer may not make a warrantless arrest for a misdemeanor unless the offense is committed in the officer's presence. (Par. 13, citations omitted.). Although a misdemeanor trespass charge is not exempt from the general rule prohibiting warrantless arrests for misdemeanors allegedly committed outside the presence of the arresting officer, the court found there was sufficient evidence for a reasonable officer could have concluded the defendant had committed or was committing a trespass offense, making the arrest lawful. (Par. 15.).

The court further noted that certain types of misdemeanors, such as OVI offenses,

as well as specific offenses set out in R.C. 2935.03(B)(1) are exempt from the general rule requiring the offense to be committed in the officer’s presence. (Par. 13, citation omitted.)

  1. Upcoming Education Opportunities

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  1. In response to the officer’s inquiry, the defendant admitted drinking “once upon a time.” (Par. 20.).↩︎