11th Willoughby District Criminal Appeals Update

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Must be quarterly release day – we’ve got a couple dozen new opinions, about a dozen of them in criminal cases.  I’m going to skip the ones dealing with jurisdictional issues, simple sufficiency issues, and appeals dismissed for being wrong or late.  As for the rest:

State v. Dickerson, 2015-Ohio-938
Dickerson was convicted of two counts of drug trafficking with firearm specifications.  He argues that there was not enough evidence to convict him of either the charges or the specifications.  As usual, the manifest weight and sufficiency arguments don’t win.  He also appeals his maximum consecutive sentence – and this time catches a break.  The trial court didn’t make the finding that consecutive sentences weren’t disproportionate to the seriousness of the crime, so he’s going to go back to court to get re-sentenced.  Wright, Cannon, O’Toole.

State v. Drummond, 2015-Ohio-939
Is it immature to note that the doctor who testified about the DNA on the cigarette butt was named Dr. Butt?  Drummond was convicted of Aggravated Murder in 2013 for a 1997 shooting and got a life sentence with parole possible after 23 years.  He appeals the length of the pre-indictment delay, claiming he was prejudiced by a number of pieces of evidence going missing over that time.  The Court notes that the most compelling testimony was from the eyewitnesses, who were all still around.  The big question in the case was, “who fired the shots?”  The missing evidence didn’t really relate to that question.  Rice, Grendell.  O’Toole dissents, opining that the lost evidence, as well as some of the witnesses’ faded memories, did prejudice Drummond.  O’Toole also would have reversed on sufficiency grounds.

State v. Trimble, 2015-Ohio-942
Kathryn Sandford at the Ohio Public Defender’s Office wins a new review of a motion for a new trial for Trimble.  He was under a death sentence for killing his girlfriend and her child and then breaking into a Kent student’s home, holding her hostage and eventually killing her.  He claims new evidence supports his contention that SWAT prematurely entered the house, causing him to accidentally kill her.  The trial court denied his motion for a new trial without a hearing or giving any reason other than failure to include an affidavit.  But an affidavit is not required.  It gets sent back for the trial court to review and, if warranted, hold a hearing or allow another motion for a new trial.  Cannon, Wright.  Grendell dissents, writing that the judgment was correct, even if it was for the wrong reasons.

State v. Price, 2015-Ohio-944
Price got 14 years for Aggravated Robbery and discharging a firearm into a habitation.  His appellate counsel found no non-frivolous issues and asked for leave to withdraw under Anders.  The court reviews the record itself, along with a couple pro se issues contesting his sentence.  No dice.  Wright, Grendell, Rice.

State v. Brown, 2015-Ohio-950
A jury found brown guilty of Domestic Violence but not Felonious Assault after Brown cut his girlfriend’s hand as she tried to take a box cutter from him.  The Prosecution called the victim to testify as a hostile witness.  Brown argues on appeal that the trial court should have denied that request.  As the victim was apparently communicating with the defense attorney rather than the prosecutor, the trial court was justified in granting that request.  Brown also argues that because the Felonious Assault and Domestic Violence would have merged, an acquittal on the Felonious Assault should also automatically acquit him on the Domestic Violence.  But, among other things, merger isn’t applied until sentencing.  Rice, Grendell, Wright.

State v. Miller, 2015-Ohio-956
Miller and his wife argued over how to handle their kid.  He got mad and threw a cell phone at her, bruising her back.  A bench trial resulted in a conviction for Domestic Violence and a suspended jail sentence.  He argues on appeal that photographs of the injuries shouldn’t have been admitted because they weren’t marked with time and date, they show injuries in a different place than she indicated in court, there were multiple bruises when the cell phone only hit her once, and she got in a car accident a couple days later.  The Court rules that those issues go to the weight of the evidence, not its admissibility.  Rice, Grendell, O’Toole.

State v. Eggleston, 2015-Ohio-958
Eggleston gets pulled over for a noise violation and ends up with a charge for trafficking in heroin.  The cop recognized him and held him up so the K-9 unit could get there and start a sniff 18 minutes later.  Without reasonable, articulable suspicion of drug activity, the 4th Amendment forbids the cops from holding a person for longer than it takes to run the plates, check the license and write the ticket. Everything the dogs found gets suppressed and we end this week’s column a win, compliments of Kent attorneyMichael Partlow.  Cannon, Wright.  Grendell dissents