Many, many, many moons ago, the hotel chain Fairfield Inn came up with a pretty funny commercial.  In the commercial, an executive was running late to a meeting and was traveling on a two lane highway.  Driving at a fast speed, the executive entered a No Passing Zone on the highway.  Unfortunately for the executive, there was an old couple driving there Cadillac going about 2 mph.  The commercial pans to the old man who began yelling at his wife, “SLOW DOWN you are going to get us killed!”  That was followed up with “You are driving like a bat out of Hades!”  To this day, I still get a laugh out of that commercial.

That little tidbit takes us to State v. Bacher, 2007-Ohio-727.

In Bacher, Bacher was traveling down the road when he was clocked by Officer Norton.  However, instead of finding a speeding infraction on the radar gun, Officer Norton found that Bacher was going at a very slow rate of speed.  In fact, Bacher was traveling about 23 mph under the posted speed limit in a 65 mph zone.  The appellate court noted Bacher’s speed as, “at a snail’s pace.”

Based on the slow speed, Officer Norton initiated a traffic stop.  During the traffic stop, Officer Norton noticed a strong order of alcohol on Bacher.  Bacher agreed to take the field sobriety tests and failed all three tests.  Bacher was then arrested for OVI.

Bacher moved to have the stop suppressed at the trial court level.  The trial court agreed with Bacher and suppressed the traffic stop.  The state appealed.

The appellate court opened up with, which I think is hilarious; “the Fourth Amendment applies even to fools.”  As you can tell, the appellate court really liked Bacher!  With that, let’s dive into some case law!

A reasonable suspicion represents something less than probable cause, but more than inchoate and unparticularized suspicion or hunch.  State v. Ramey, 129 Ohio App.3d 409.  When assessing whether reasonable suspicion existed, a reviewing court must consider the totality of the circumstances to determine whether the officer had a particularized and objective basis for suspecting wrongdoing.  U.S. v. Cortez, 449 U.S. 411.

Even legal conduct, under some circumstances, may justify a reasonable suspicion that criminal activity is afoot.  U.S. v. Sokolow, 490 U.S. 1.  But reasonable suspicion generally requires that there be a series of innocent acts that when viewed together, give an officer justification for further investigation.  Id.

The appellate court found that driving 42 and 43 mph in a 65 mph zone is not illegal or improper unless there is a posted minimum speed limit.  Ohio’s slow-speed statute requires that the slow-moving vehicle “impede or block the normal and reasonable movement of traffic.”

Based on the above, the appellate court found that slow driving alone does not create a reasonable suspicion of OVI, and upheld the trial court’s original decision.

If you ever get a chance to read the original opinion in Bacher, I highly recommend it.  Judge Painter does an excellent job of being very blunt and at the same time being very true to the law.

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Holidays, family get-togethers, weddings, and family reunions are more often than not some of the most joyous times you may have with your family.  Then again, no one likes to see their drunk Uncle Frank hit on a waitress then pick a fight with the bartender because he used Jack Daniels whiskey instead of the cheap Cutty Sark brand.  After all, Uncle Frank is on a fixed income.   But hey, it is family….right?!?!

Well in State v. Race, 2017-Ohio-612, the defendant made it very well known to his mother that she was not allowed back into the house they shared.  This well thought out delivery of said news to his mother landed the defendant in some criminal legal troubles.

In Race, Race was indicted on domestic violence, receiving stolen property, aggravated drug possession, and possession of drugs.  Ole Race, not wanting to give up the good fight, took his case to the box to defend against these absurd charges.

Unfortunately for Race, he was found to be guilty as charged.  The trial court found Race was not amenable to community control and sentenced Race to an aggregate prison term of 17 months.  On appeal, Race only assigned errors to his domestic violence conviction.

Race argued that there was an insufficiency of evidence to sustain his conviction of domestic violence and that the trial court erred by refusing to grant his motion for acquittal for the criminal charge of domestic violence.  Both assignments of error were based on the element of “imminent physical harm” proscribed by R.C. 2919.25(C).

R.C. 2919.25(C) states the following:

No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

Race and his mother lived together when he made the threat to her via telephone.  Race’s mother testified that she was at the hospital and that she informed Race about her plan to return home instead of moving into a nursing home.  Mother’s plan was to have nurses assist her in making this return home.

In response, Race threatened to kill his mother and anyone who joined her if she were to return home.  Mother further testified that although she felt “not good” resulting from the threat, her sense at that moment was that she was unsure whether Race was serious.  Even so, Mother testified that she did not want to return home that night, and that she begged the hospital staff to stay admitted.

At trial, Race’s attorney moved the trial court for acquittal of the domestic violence charge allegedly committed against the victim “based upon lack of proof.”  The trial court denied the motion.

In both assignments of error, the appellate court found that Race was essentially arguing that there was insufficient evidence to convict him of domestic violence under R.C. 2919.25(C).  Based on that finding, the appellate court addressed both of Race’s assignments as one.

On review for sufficiency, the court examines the evidence at trial to determine whether such evidence, if believed, would support a conviction.  State v. Jenks, 61 Ohio St.3d 259.  The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond reasonable doubt. Id.

On review of the denial of a Crim.R. 29(A) motion, a court views the evidence in a light most favorable to the state.   State v. Bridgeman, 55 Ohio St.2d 261.  An entry of acquittal is improper “if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.”  Id.

Unfortunately, the Revised Code does not define the word imminent.  In re Jenkins, 2004-Ohio-2657.  However, Ohio courts have defined imminent as “near at hand or impending.”  State v. Fisher, 2011-Ohio-5965.  It has also been defined as the belief of the victim that harm would occur immediately or, in the alternative, that the defendant will cause immediate physical harm.  Id.

Generally, a conditional threat, standing alone, is insufficient to satisfy the element of imminent physical harm.  State v. Schweitzer, 2015-Ohio-925.  A threat is conditional where a prerequisite must occur before the actor intends or is empowered to carry out the threat.”  State v. Collie, 1008 Ohio App.3d 580.  A conditional threat can constitute a violation of the menacing laws, but not a violation of R.C. 2919.25(C).  In re Jenks.

In Race’s case, his mother testified that Race called and threatened to kill her.  The record revealed that this testimony was the only evidence offered to support the domestic violence conviction.  Further, Mother’s testimony supports that Race’s threat was conditioned on the victim returning home.  Mother did not indicate she felt unsafe at that moment, and she even asked to stay admitted at the hospital – which confirmed she felt safe at the specific time and place.  Mother’s concern was what may happen if she were to return home.

Based on this, the appellate court held that no reasonable trier-of-fact could find that Race’s threat was imminent or that Race’s mother believed she stood in jeopardy of immediate physical harm.  Thus, there is no basis on record for the domestic violence conviction.

Now you might be thinking, “big deal….Ole Race is still sitting in prison.”  Domestic Violence charges are a big deal because they carry stiff collateral consequences and each subsequent charge is enhanceable.  Meaning, if Race’s conviction stuck and he pulled the same B.S. with his mother again, he would now be facing a second degree misdemeanor instead of a fourth degree misdemeanor.

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On January 18, 2017, I posted a blog article entitled Separating Actual Cocaine From The Filler:  A Look At How The Ohio Supremes Are Requiring The State To Prove The Weight Of Cocaine Without Any Filler.

In that article, I discussed State v. Gonzales, 2016-Ohio-8319, and how the Ohio Supreme Court was asked, “Must the state, in prosecuting cocaine offense involving mixed substances under R.C. 2925.11(C)(4)(b) through (f), prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?”

Based on that question, the Ohio Supremes held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.

Well unfortunately for Gonzales I, it only last for a few short months and has now been reversed by the Ohio Supreme Court.

Pursuant to Supreme Court Practice Rule 18.02, the state filed a Motion to Reconsider the court’s original ruling in Gonzales I.  S.Ct.Prac.R. 18.02 gives the Ohio State Supreme Court the authority to “correct decisions which, upon reflection, are deemed to have been made in error.”  State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381.  The Court, “will not, however, grant reconsideration when a movant seeks to merely to reargue the case at hand.”  Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2014-Ohio-1940.

The state asserted in their Motion to Reconsider that the Court misapplied the rule of lenity and the canon of strict construction.  Based on that belief the Court, in a 5-2 decision, granted the state’s Motion to Reconsider Gonzales I.

Chief Justice O’Connor, writing for the majority, held that the entire “compound, mixture, preparation, or substance,” including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4).  Thus, the Court vacated its decision in Gonzales I and reinstated the 11 year prison sentence of Gonzales.

Justices Kennedy and O’Neill wrote dissenting opinions.  Out of the two dissenting opinions, Justice O’Neill let his feelings known!

Justice O’Neill stated that each of the opinions in Gonzales I were fully and carefully considered by the seven justices of the court and the only thing that has changed since Gonzales I is the makeup of the court.  Justice O’Neill followed that up with “[f]rom this day forward, newly seated justices on this court have a license to reconsider that which they never considered in the first place.”  Original emphasis.

And to drive his dissatisfaction with the new majority opinion, ended his dissent with the following:

“To be clear, today’s majority opinion does a major disservice to the English language to arrive at a desired result.  From this date forward, the statute in question will be read to mean that 2.99 grams of powder will now be considered to be 3.00 grams of cocaine if there is even a scintilla of the controlled substance found in the ‘mixture.’  Good enough for government work?  I think not.  I dissent.”

I believe a little history lesson might be in order with regards to the word “cocaine.”  This whole wording debacle with regards to “cocaine” came about under a decade ago with lawmakers tried to equalize sentencing for powder cocaine and crack cocaine.  This was done to address concerns that minorities, who were more likely to use crack than powder, were being punished disproportionately for using essentially the same drug being used by a white powerbroker who was using the powder form in a penthouse suite.

As I stated in my previous article, this is a problem for the Ohio General Assembly to figure out and potentially write a new law with regards to “cocaine.”

Rep. Robert Cupp presented Amended House Bill 4 to address the issue of cocaine and cocaine fillers after Gonzales I was decided.  In the notes, the House Bill states the following:

“The General Assembly is aware of the Ohio Supreme Court’s holding in State v. Gonzales, 2016-Ohio-8319.  It was not the intent of the General Assembly to require the State, in prosecuting cocaine offenses involving mixed substances, to prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler material used in the mixture.”

Amended House Bill 4 has been passed in the House, but the Senate has not acted on the bill yet.

Only time will tell with regards to the fate of the word cocaine!

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“Hurry up and wait” is a common theme in criminal court rooms across the country.  Attorneys arrive to their respective hearings earlier enough to talk with the judge and prosecutor in hopes of having their case called first to move on to the next courthouse and case.  However, sometimes the court docket is 30 pages long and the attorney has no choice but to wait patiently.

But, that is the game and attorneys know how to play it and are very much use to it.  Personally, I don’t mind it because I use that time to go over my case and to take a mental break.

Realistically, the reason the criminal court room process takes a good length of time is because the judge has to go over a lot of information with the defendant.  This includes all of the guaranteed constitutional rights the defendant will be giving up if he proceeds to a guilty plea.  In addition, the judge has to inform the defendant what the effect of his guilty or no-contest plea has in his/her case.

That, ladies and gentlemen, is my little segue to State v. Walsh, 2017-Ohio-549.

In Walsh, Walsh was involved in a motor vehicle accident and was cited for failure to drive with in marked lanes.  Walsh set his case for trial, but his witness was a no show for trial.  Walsh, with legal counsel, then entered a no-contest plea to the marked lanes violation.

The very brief colloquy between Walsh and the court is below:

Court:  Are we proceeding to trial?

Counsel:  Your Honor, there’s a plea.  No contest to the allegations.  Stipulate the facts.

Court:  Insurance?

Prosecutor:  Insurance was marked yes, Judge.

Court:  And you’ll stipulate to the guilt?

Counsel:  Correct.

Court:  Finding is guilty.

Apparently not too happy with entering a no-contest plea, Walsh appealed his case arguing that the trial court erred when it failed to advise him of the effect of his no-contest plea.

Traffic Rule 10(D) states that a trial court “shall not accept a guilty or no-contest plea without first informing the defendant of the effect of the plea of guilty, no contest, or not guilty.”  A court complies with the mandate of Traffic Rule 10(D) by “informing the defendant of the information contained in Traf.R. 10(B).”  State v. Watkins, 2003-Ohio-2419.

Traffic Rule 10(B) describes the effects of the possible pleas, nothing that “the plea of no contest is not an admission of defendant’s guilty, but is an admission of the truth of the facts alleged in the complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.”  Traf.R. 10(B)(2).

While a slight deviation from the text of the rule is permissible, the trial court must convey sufficient information so that a defendant subjectively understands the implications of his plea and the rights he is waving.  State v. Clark, 2008-Ohio-3748.

Based on the rules and case law, the appellate court found the above colloquy was insufficient to satisfy the notification requirements of Traf.R. 10(D).  Therefore, the judgment of the trial court was reversed and remanded back down to the trial court.

Listen, I have no doubt that the trial court probably had a very lengthy docket and the court was just trying to move the cases along as efficiently as possible.  But, as the Ohio State Supreme Court has stated in multiple cases, the rules are there for a reason!

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