Tuesday, Oct. 22, 2019
State of Ohio v. Damantae D. Graham, Case no. 2016-1882
Portage County Court of Common Pleas
In re Application of Ohio Power Co., Case no. 2018-1396
Public Utilities Commission of Ohio
State of Ohio v. Michael Bryant, Case no. 2018-1418
First District Court of Appeals (Hamilton County)
Ravenna Man Who Killed Student in Robbery Appeals Death Sentence
State of Ohio v. Damantae D. Graham, Case no. 2016-1882
Portage County Court of Common Pleas
The Ohio Supreme Court will consider the direct appeal of the death sentence imposed on Damantae Graham of Ravenna. Graham was part of a group of teens who robbed a Kent home in February 2016. During the robbery, Graham shot and killed an 18-year-old Kent State University student.
Trio Plans to Rob Drug Dealer
On three or four occasions, Ty Kremling visited Connor Haithcock’s Kent apartment to buy marijuana. Kremling noticed that Haithcock had substantial cash and marijuana in the apartment and thought he would be an easy target to rob.
On Feb. 7, 2016, which was Super Bowl Sunday, Kremling made a plan with Graham and Marquis Grier to rob Haithcock. They wore bandanas and hoodies to conceal their identities. Graham and Grier carried semi-automatic pistols, but Kremling said he didn’t have a gun. Kremling asked his friend Anton Planicka to be their driver.
Haithcock and Justin Lewandowski shared the apartment, and Nicholas Massa was visiting them on Feb. 7. Lewandowski and Massa both attended Kent State. When Kremling’s group arrived at the apartment, Kremling knocked on the door, and Lewandowski answered. Kremling, Graham, and Grier entered the apartment, pointing their guns, Lewandowski said.
Haithcock later testified that he recognized Kremling right away. Haithcock said he gave them all the money in his pockets – about $600 – and added there might be more in his bedroom. Kremling and Grier took Haithcock to the bedroom to look.
In the living room, Graham told Massa to stop looking over to Lewandowski, and said if Massa looked at Lewandowski again, Graham would shoot him. Massa replied, “You’re not going to shoot me,” and Graham shot him in the chest. The others came running back from the bedroom, and Graham, Kremling, and Grier ran out of the apartment. Massa’s gunshot wound was fatal.
That night, police arrested Kremling, and later arrested Grier and Planicka. The three teenagers eventually identified the shooter as Graham, who was located and arrested.
Teen Shooter Faces Death Penalty
Graham, 19, was indicted for the murder of Massa, as well as for robbery, burglary, and kidnapping. The charges included a death-penalty specification and firearm specifications. The other two involved in the robbery – Kremling and Grier – testified at Graham’s trial.
The jury found Graham guilty on all counts. The jury recommend the death penalty, and the trial court agreed. The court sentenced him to various prison terms on the other charges.
Because Graham was sentenced to death, he is entitled to a direct appeal to the Ohio Supreme Court. In his brief to the Court, he raises 14 legal issues to challenge proceedings at his trial and his sentence.
Racial Slurs and Comments by Potential Jurors
Graham, who is African American, states that a potential juror was questioned during voir dire in front of others in the jury pool about her use of a racial slur in her jury questionnaire. Graham also maintains that other potential jurors made racist comments heard by people in the jury pool. He argues that such comments tainted the jury and that his lawyers failed to address the issue.
The Portage County Prosecutor’s Office responds that groups of five or six potential jurors were brought into the courtroom during voir dire, and one juror at a time was taken to a private room for individual questioning. The questioning of the woman about her responses on her questionnaire was conducted privately, away from other potential jurors, the prosecutor notes. The office also maintains that none of the individuals selected for the jury, or as alternates, were in the groups that might have heard the other allegedly racist comments.
Court Order about Alcohol Consumption
Graham also raises legal concerns because the trial judge issued an order that the jury could consume up to three alcoholic drinks between 6 p.m. and 10 p.m. Graham argues that he has a right to a fair trial before an impartial and mentally competent jury. He suggests that jurors recovering from the effects of intoxication while considering a capital case would infringe on his ability to receive a fair trial.
The prosecutor counters that the court order was issued in the event the jury was sequestered during their deliberations in either the guilt phase or the sentencing portion of the trial. However, neither phase extended beyond one day, so the jury never was sequestered and never was subject to the order, the prosecutor states.
Photograph Showing Suspects with Guns Days before Crimes
During Kremling’s testimony, the prosecutor asked him if he knew Graham as someone who carried a weapon. The prosecutor also showed the jury photographs from Kremling’s cell phone that depicted Grier and Graham holding guns a few days before the Feb. 7 robbery and shooting.
Graham notes that the gun used to shoot Massa wasn’t ever recovered. He asserts that the prosecutor’s introduction of photos showing him with a firearm that was never connected to the robbery or murder had no value in proving the state’s case and created unfair prejudice against him.
The prosecutor argues that the photos were admitted to identify Graham as one of the men involved in the crimes. The office in its brief maintains, “There is a logical connection between the individuals photographed together in this picture a few days before the crime in a location involved in the timeline of the murder and the murder itself.” Also, Lewandowski described the gun and the shooter’s appearance – both of which match the image of Graham and the gun in the photos, the prosecutor states.
Additional Claims
Among Graham’s other arguments, he contests the imposition of the death penalty on him because he was 19 at the time of the crime. He also argues that the prosecutor improperly “bolstered” the credibility of his co-defendants, his fair trial rights were violated when Massa’s father was permitted to testify during the trial’s guilt phase, and he was prejudiced because his attorneys presented only one witness during the mitigation phase.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Damantae D. Graham: Donald Hicks, 330.762.5500
Representing the State of Ohio from the Portage County Prosecutor’s Office: Victor Vigluicci, 330.297.3850
Can Electric Utility Charge Customers for Price Difference of Power from Affiliated Plant?
In re Application of Ohio Power Co., Case no. 2018-1396
Public Utilities Commission of Ohio
ISSUES:
- Is the Public Utilities Commission of Ohio authorized to approve a power purchase agreement between Ohio Power Co. and electric-generating plants owned by an Ohio Power affiliate, or must a federal government agency approve the arrangement?
- Can Ohio Power add a “Smart City rider” charge to customer bills to pay for electric-vehicle charging station incentives and experimental “microgrids” as part of the city of Columbus’ Smart City initiative?
- Can the commission authorize a “placeholder” renewable generation rider that charges Ohio Power customers for the costs associated for new renewable energy plants?
BACKGROUND:
In 2018, Ohio Power Co., doing business as AEP Ohio, filed for its fourth electric security plan (ESP), which the Public Utilities Commission of Ohio (PUCO) approved. The plan was an extension of its third ESP that included a power purchase agreement rider (PPA). The Ohio Consumers’ Counsel (OCC) and others challenged the ESP and PPA in an appeal to the Ohio Supreme Court, and the Court upheld the plan in November 2018. (See Court Approves Ohio Power Company Rate Plan.) The new ESP asked state regulators to extend AEP’s rate plan until May 2024 and allow the PPA to be extended for the same amount of time.
Charge for Energy from Older Plants Challenged
The PPA allows the company to charge consumers for power generated by the Ohio Valley Electric Corporation (OVEC). OVEC originally constructed power plants in the 1950s to supply electricity to federal uranium enrichment facilities near Portsmouth. When the uranium facilities closed, the power from the OVEC plants became available to AEP, as a partial owner of OVEC.
AEP plans to sell the electricity from OVEC on the open market. The PPA provides either a charge or a credit to customers, depending on whether the price of generating power from OVEC is above or below the market rate for power in a 13-state market that includes Ohio. The consumers’ counsel objects to the plan, arguing the cost to produce electricity from OVEC always would be more than the market rate to sell the electricity, and AEP customers would be paying a surcharge to cover AEP’s costs. It noted that through June 2019, AEP collected more than $98 million from customers from the PPA rider. The company argues that while open market prices for electricity fluctuate, OVEC’s costs are relatively stable and will protect consumers against price spikes. AEP claims the rider will benefit consumers through the life of the project.
Because the OVEC power is going to the open market, the consumers’ counsel alleges the PUCO wasn’t authorized to approve the rider. The consumers’ counsel appealed the decision to the Supreme Court, maintaining that the PPA impacts the sale of electricity at the wholesale level, and while the commission is authorized to regulate rates paid by retail customers, only the Federal Energy Regulatory Commission (FERC) can regulate wholesale rates. The Supreme Court is required to hear appeals of PUCO decisions.
Other Aspects of Rate Plan Disputed
The consumer advocate also objects to two other portions of the AEP rate plan. Columbus was awarded a $40 million U.S. Department of Transportation “Smart City” grant as part of the program, AEP agreed to participate in demonstration projects. AEP proposes a Smart City rider, which would raise money from its ratepayers to help deploy electric-vehicle charging stations around central Ohio and construct a “microgrid,” which is an electricity grid that is part of the overall main AEP power grid. If there is an outage on the main grid, the microgrid can supply electricity to its consumers on its own.
A third charge in the proposed ESP is for a renewable generation rider, which would allow AEP in the future to charge for any assistance in construction of renewable energy sources if the PUCO determines the company’s funding in necessary. The consumer advocate OCC argues the PUCO didn’t meet the requirements to authorize the proposed charge.
Commission Not Authorized to Approve Charge, Consumers’ Counsel Argues
The consumers’ counsel cites the “supremacy clause” of the U.S. Constitution to argue that the Federal Power Act gives the FERC the exclusive authority over the wholesale sale of electricity. Electricity in 13 states, including Ohio, goes into a regional transmission system where the competitive marketplace determines the rate that power companies pay to purchase electricity to sell to its retail customers. The consumers’ counsel argues that when the PUCO authorizes AEP to collect a fee on top of the wholesale rate, it is in effect setting a wholesale rate, which only the FERC can do. The consumers’ counsel is asking the Supreme Court to find the PUCO lacked the authority to set the rate and to void it.
Riders Don’t Fund Distribution Service, Opponent Asserts
The consumers’ counsel notes that with the deregulation of the electric utility industry, AEP is now an electric distribution and transmission company. The power company’s ESP can include only charges for the utility’s distribution service. The Smart City rider to fund charging stations and microgrids isn’t an essential distribution service with costs that can be passed on to ratepayers, the consumers’ counsel maintains. The advocate asserts that the 1.4 million AEP customers in its service territory aren’t obligated to fund the demonstration projects for a just a segment of the population in the Columbus area. The consumers’ counsel argues that the PUCO violates R.C. 4928.141 and R.C. 4928.143(B)(2)(h) because the charges aren’t “distribution service” and are not “necessary to maintain essential electric service to customers.” The consumer advocate maintains that if the company wants to support the Smart City initiative, it should do so with company funds and not additional revenue from customers.
The renewable generation rider can’t be approved under R.C. 4928.143(B)(2)(c), the advocate contends, because the funds are to be used for “generation,” which is now a competitive industry separate from AEP’s distribution service. While AEP argues the proposal is a “lifeline” for funding should there be a need for assistance to support the development of renewable energy, the consumers’ counsel argues the company must prove a “need” in its ESP. The consumers’ counsel asserts that AEP made no case that there is a need and that the PUCO can’t approve a rider that could be funded in the future with ratepayer money to pay for it.
Commission Maintains Law Authorizes Plan
The PUCO argues the PPA is simply a contract — an agreement between OVEC and AEP to purchase power — and isn’t the wholesale sale of electricity. The commission points to federal court decisions noting the FERC has authorized similar agreements to allow utilities to purchase power through contracts that aren’t the same rate as the open market rate, and have allowed states to regulate those purchases as retail sales. The PUCO contends that unlike the situations in other states that the consumers’ counsel points to regarding FERC oversight, the commission didn’t order AEP to purchase the OVEC power at a state-regulated rate. Because the action is a voluntary agreement between AEP and OVEC, the PUCO is authorized to approve it.
R.C. 4928.143(B)(2)(h) allows the PUCO to adopt an ESP that includes incentives for distribution infrastructure and modernization, the commission explains. The commission argues that authority allows for the Smart City rider. The incentive to build electric vehicle charging stations is an infrastructure modernization as is the “microgrid” project, which will provide useful data on how the reliability of the entire electric grid can be improved in the future, the commission argues.
The renewable generation ride rise is “placeholder” rider, similar to what the Court approved when it authorized the PPA as a placeholder rider in 2018. The PUCO argues it allows AEP to request the rider as part of the ESP, but then establishes a separate proceeding where the company must justify the need for the rider and the consumer charge it is requesting. The PUCO notes that it already argued, and the Court agreed, that a placeholder rider doesn’t “harm” consumers and that the consumers’ counsel can’t prove the proposed renewable generation rider would pose any harm at this point. Because it isn’t harming customers, the consumers’ counsel can’t challenge its imposition at this time, the commission concludes.
Company Agrees with Commission’s Position
The Court permitted AEP to intervene in the case and independently argue for approval of its ESP. The company’s brief makes similar arguments to the PUCO that state law allows the commission to approve the proposed plan.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of the Ohio Consumers’ Counsel: William Michael, 614.466.1291
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Werner Margard, 614.466.4397
Representing the Ohio Power Company: Steven Nourse, 614.716.1608
When Driver Left Accident Scene after One Hour, Did He Violate ‘Hit-Skip’ Statute?
State of Ohio v. Michael Bryant, Case no. 2018-1418
First District Court of Appeals (Hamilton County)
ISSUES:
- Under R.C. 4549.02(A)(1), when a defendant provides his or her name, address, and license plate number to the operator of the other vehicle after an auto accident, does the defendant violate the failure-to-stop law when there was no officer at the scene and the police weren’t called until after the defendant left?
- Under R.C. 4549.02(A)(1), is the “registered number” of a motor vehicle equivalent to the vehicle’s license plate number?
BACKGROUND:
On March 16, 2017, at about 11 p.m., Elanor Everhardt was involved in an auto accident after she and her sister departed from a concert in Cincinnati. Everhardt later testified that, as she was driving, a vehicle pulled around to her left and hit the driver’s side of her car. The vehicle then hit a divider curb in the middle of the street, resulting in two flat tires.
Michael Bryant, who was driving the other car, pulled into a nearby car wash parking lot, and Everhardt followed. They each got out of their cars and spoke. Everhardt said Bryant was unaware that the cars had collided, and he was stumbling and smelled of alcohol. Everhardt stated that Bryant confessed that he was drunk and asked her not to call the police.
Bryant gave Everhardt his full name and phone number. He told Everhardt he didn’t have insurance, a driver’s license, or registration. Everhardt said Bryant let her photograph his state identification card, which included his address, and she took a picture of his license plate. They talked for about an hour, then Bryant left. Everhardt then called a tow truck and the police, and an officer responded to the scene. No evidence in the record indicates that Bryant knew Everhardt planned to call the police nor that Everhardt told him she wouldn’t contact authorities.
Driver Brought to Trial on Accident-Related Charges
Bryant was charged with driving under a financial responsibility suspension, failure to control, and failing to stop after an accident. A bench trial was held, and the court acquitted Bryant of the financial responsibility suspension charge and found him guilty of failure to control and failure to stop after the accident.
The court sentenced Bryant to one day in jail, with credit for one day served, on the failure-to-control conviction. For the failure-to-stop conviction, Bryant was sentenced to 180 days in jail with 146 days suspended and four days of credit, resulting in a 30-day sentence. The court stayed the sentences pending appeal.
In September 2018, the First District Court of Appeals upheld the conviction for failure to stop and dismissed the appeal on the failure-to-control conviction. Bryant appealed the First District’s ruling on the failure-to-stop issue to the Ohio Supreme Court, which agreed to review the case.
Driver States Police Weren’t Called and He Left after an Hour
Bryant focuses on the language “police officer at the scene of the accident or collision” in R.C. 4549.02, referred to as the “hit-skip” or “hit and run” statute. He argues that there was no police officer at the scene of this accident and that the police were never called during the hourlong conversation he and Everhardt had in the parking lot. If a police officer had been there, he would have had to provide his information to the officer, Bryant notes. He maintains, though, that he wasn’t required to wait around, especially when he had no indication that Everhardt planned to call the police.
Citing the dissent from the First District, Bryant highlights the distinctions between divisions (A)(1) and (A)(2) of R.C. 4549.02. Division (A)(2) – which applies when an injured person can’t collect or supply the information required in (A)(1) – requires the other driver to notify the closest police authority and to remain at the accident scene until a police officer arrives. In contrast, Bryant argues, (A)(1) mandates the driver to stop and remain at the scene until the driver has given his or her name and address, and the vehicle’s “registered number,” to any injured person; the “operator, occupant, owner, or attendant” of any damaged vehicle; and the police officer at the scene. The First District’s dissenting judge concluded that the legislature used different language to distinguish between when a driver has to stop and remain at the scene, and when a driver doesn’t.
The law’s “plain and unambiguous terms” don’t require a driver to remain at an accident scene once the driver provides identifying information to the other operator when the driver doesn’t know that police are on their way, Bryant’s brief concludes.
Information Must Be Provided to Police, City Argues
The City of Cincinnati Law Department notes that the statute was amended in 2016 to require that specific information be given to everyone listed. Before the change, the law permitted drivers to provide the information to any injured person or the operator, occupant, owner, or attendant of any damaged vehicle or the police. The 2016 amendment mandated that the information now must be supplied to all of these people, the city argues.
The city also maintains that the phrase “police officer at the scene of the accident or collision” means any officer who responds to the scene in a reasonable amount of time. In this case, the officer’s response time was reasonable, the city states.
In reviewing testimony presented to the General Assembly when R.C. 4549.02 was amended in 2016, the city found that that legislature’s goal in amending the law was to deter individuals from leaving the scene of an accident and, broadly, to deter impaired driving. Noting that Bryant told Everhardt he was drunk, the city states that this is the conduct the legislature wanted to stop by amending the law. The city concludes that Bryant’s conviction for leaving the scene of an accident should be upheld.
Meaning of ‘Registered Number’ in Statute Disputed
Bryant and the city also disagree on the meaning of a motor vehicle’s “registered number” as stated in the law. At the trial, the city argued the registered number is the vehicle’s registration certificate issued by the Bureau of Motor Vehicles. The trial court agreed. The First District noted that the term isn’t defined in the Ohio Revised Code and the meaning is ambiguous, but it didn’t need to reach the issue to resolve the case.
Bryant argues that interpretation from the Supreme Court is needed because the phrase is ambiguous. Pointing to the Ohio Department of Public Safety’s materials about what to do if you’re in a crash, he notes that it lists information to collect at the scene. The list includes license plate numbers, but not vehicle registration numbers. He maintains that a Supreme Court interpretation that “registered number” means the vehicle’s license plate number will uphold the purpose of the hit-skip law because a license plate number assists the accident investigation and provides information to enable law enforcement to contact a driver.
The city notes the trial court acknowledged that a license plate number might not correspond to a vehicle registration because a plate could be fictitious. In addition, the city maintains, the separate procedures for obtaining and renewing license plates and vehicle registrations demonstrates that a license plate number and a vehicle registration number aren’t the same. Even if the Court disagrees, Bryant still didn’t comply with the law because the testimony didn’t show that he affirmatively provided his plate number to Everhardt, just that she took a picture of the plate.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael Bryant from the Hamilton County Public Defender’s Office: Krista Gieske, 513.946.3700
Representing the State of Ohio from the City of Cincinnati Law Department: Jonathon Vogt, 513.352.4710
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.