Wednesday, Jan. 29, 2020
State of Ohio v. Gerald Pendergrass, Case no. 2018-1814
Second District Court of Appeals (Montgomery County)
State of Ohio v. Michael Smith, Case no. 2018-1831
First District Court of Appeals (Hamilton County)
Ohio Department of Job and Family Services v. Delphi Automotive Systems LLC, Case no. 2017-0553
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Sharon D. Fips, Case no. 2018-1778
Eighth District Court of Appeals (Cuyahoga County)
Can Repeat-Offender Penalty Be Imposed for Conduct that Occurred Prior to First Offense?
State of Ohio v. Gerald Pendergrass, Case no. 2018-1814
Second District Court of Appeals (Montgomery County)
ISSUE: If an individual is indicted for having unlawful sexual conduct with a minor for a time period starting in 2013, and indicted for the same crime for conduct that started in 2015, and if the individual is convicted first of the conduct that started in 2015, can the prosecution under R.C. 2907.04(B)(4) seek to convict the person as a repeat offender based on the conduct that started in 2013?
BACKGROUND:
In 2016, Gerald Pendergrass was indicted in Montgomery County on two counts of unlawful sexual misconduct. The charges were based on actions that occurred between October and December 2015. He pleaded guilty and was convicted of one count, a fourth-degree felony .
In 2017, based on further examination of Pendergrass’ past, he was indicted again on two counts of unlawful sexual misconduct. The charges were based on acts spanning from May 2013 to May 2015. Prosecutors cited R.C. 2907.04(B)(4) and argued that because Pendergrass had been previously convicted of the same charge, the two new counts elevated the charges to second-degree felonies.
Pendergrass asked the trial court to dismiss the case. He argued the new charges were not subject to enhancement from fourth-degree felonies to second-degree felonies because the new charges were based on acts that occurred prior to his first conviction, and that he wasn’t a repeat offender. The trial court found the enhancement was based on a violation after the conviction, meaning for any act after December 2015. Because his actions occurred prior to the time of his first conviction, R.C. 2907.04(B)(4) didn’t apply, the court concluded.
The prosecutors appealed to the Second District Court of Appeals. The three-member appellate panel issued three separate opinions, with two reversing the trial court’s decision. Pendergrass appealed the decision to the Supreme Court, which agreed to hear the case.Elevation Permitted Only if Offense Took Place at Later Time, Offender Argues
The purpose of the enhanced penalty is to increase the punishment for an offender who repeats the crime after having previously been convicted of it, Pendergrass argues. In his case, prosecutors are seeking to elevate the penalty for acts that took place before his first conviction.
R.C. 2907.04(B)(4) states: “If the offender previously has been convicted of or pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or a violation of former section 2907.12 of the Revised Code, unlawful sexual conduct with a minor is a felony of the second degree.”
Pendergrass maintains that the sentence implies the enhancement for a second conviction applies if an offender has been convicted of a violation that occurred prior to the new charge. He argues the Second District lead opinion added the word “already” before “has been convicted” to change the meaning of the law and based the penalty on the timing of the conviction and not the timing of the violations.
Pendergrass maintains the prior conviction is an element of the crime itself under R.C. 2907.04(B)(4). Because an offense is complete upon the commission of all the elements of the offense, Pendergrass would have had to have been convicted of unlawful sexual conduct at the time he was accused of committing a second violation of the law. In his case, his first violation took place in late 2015, and was he was convicted in 2016. For the offense to qualify as a prior conviction, he would have had to be convicted before May 2015, he states. Because his second charge relates to actions that took place before his conviction, R.C. 2907.04(B)(4) doesn’t apply to his acts, and he can’t be charged with the higher felony level, he concludes.
Prosecution States Law is Clear and Applies to Offender
Montgomery County prosecutors maintain the law is unambiguous and that they were authorized to indict Pendergrass for a second-degree offense because he previously had been convicted of the same crime at the time he was indicted for the second offense. The prosecutors argue the timing of the violations are not relevant because the law does not include a requirement that the offense is a “subsequent offense,” or “second offense,” or stated with similar terminology. The law only requires a subsequent conviction.
The prosecutor acknowledges a similar federal law — and other Ohio statutes dealing with repeat offenses — make clear that the second offense had to occur after the first violation, not after the first conviction to apply. But the legislature's reasoning for basing the enhancement on convictions makes sense when considering sex offense laws involving minors, they explain. Frequently sex offenses involving minors include “delayed disclosure.” Child victims often wait years to disclose their sexual assaults, and earlier offenses might not lead to convictions in any particular order, the prosecutors maintain. The prosecutors argue that an offender is not entitled to a benefit because of the timing of the disclosure by child victims.
The prosecutors claim that under Pendergrass’ logic, he can never be charged with enhanced penalties if crimes prior to those that took place in late 2015 are discovered. Not being able to charge Pendergrass as a repeat offender would negate the purpose of the enhanced sentencing and lead to an absurd result, the prosecutors conclude.
–Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Gerald Pendergrass from the Ohio Public Defender’s Office: Victoria Bader, 614.466.5394
Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Heather Ketter 937.225.4117
Should Evidence Related to Acquittal Be Allowed in Subsequent Criminal Case?
State of Ohio v. Michael Smith, Case no. 2018-1831
First District Court of Appeals (Hamilton County)
ISSUES:
- Should evidence of prior acts that led to criminal charges but resulted in acquittal be barred from consideration in a subsequent criminal case?
- Does the admission of evidence of a 30-year-old acquittal for which the transcripts and complete record are unavailable violate the test described in the Ohio Supreme Court’s decision in State v. Williams (2012)?
BACKGROUND:
Michael Smith reconnected with his daughter Mychal when she was in her 20s. Mychal had three daughters. On Jan. 1, 2016, Smith offered to take his granddaughters to a movie, and Mychal dropped them off at Smith’s home in a Cincinnati suburb.
The youngest grandchild fell asleep at the house, so none of them made it to the movie. Mychal agreed to let the girls stay overnight with their grandfather and see the movie the next day. The oldest child, identified as R.E., had spent the night at Smith’s house before. On that evening, the children settled into Smith’s bed with him to watch television. R.E. said later that she asked Smith to apply baby oil to her skin because her skin felt itchy, and he did.
The next day, Mychal picked up the girls. Ten-year-old R.E. told her mom that Smith had touched her inappropriately when he applied the baby oil, then engaged in sexual activity with her. She said he also turned on a pornographic movie. The next morning, she said, Smith again approached her sexually in the bed.
Mychal contacted the police, and later recorded a phone conversation with Smith about what happened. Smith was indicted in April 2016 on charges of rape, gross sexual imposition, and disseminating matter harmful to juveniles.
Trial Court Permits Testimony about Allegations Made 30 Years Earlier
Before his trial, the prosecutor stated that it planned to use evidence from a 1986 case against Smith. In that case, Smith was acquitted on sexual battery charges involving an older daughter. The trial court agreed to allow the evidence.
The jury in the R.E. case deadlocked. In the second jury trial, Smith’s 44-year-old daughter, who made the prior allegations, and a sister, testified. The jury acquitted Smith on the rape charges, but convicted him for gross sexual imposition and disseminating harmful matter to children.
Smith appealed on several issues, including the admission of evidence from the 1986 case that resulted in an acquittal. In November 2018, the First District Court of Appeals upheld Smith’s convictions and sentence.
Smith appealed to the Ohio Supreme Court, which agreed to hear the case.
Grandfather Critiques U.S. Supreme Court Decision on ‘Other-Acts’ Evidence
Smith notes that the First District followed the majority’s reasoning in a 1990 U.S. Supreme Court case. In Smith’s view, however, Dowling v. United States violates the Ohio Constitution’s protections against double jeopardy and ensuring due process.
In Dowling, a man was acquitted of robbing a woman in her home. He was charged at a later time with robbing a bank, and the woman testified at the bank robbery trial. The U.S. Supreme Court ruled that neither double jeopardy nor the due process concept of fundamental fairness prohibits the use of evidence related to an earlier acquittal.
Smith’s brief states that Dowling contains a “fatal flaw” – it depended on earlier civil, rather than criminal, cases to conclude that admitting acquittal evidence from a criminal case is permitted because that evidence would be evaluated under a lower standard of proof. But in civil cases, Smith maintains, double jeopardy doesn’t arise, and there’s no potential for the loss of one’s liberty. Yet Dowling forces the accused to defend against charges for which he has already been acquitted, Smith contends.
Pointing to the definition of “acquittal” in Black’s Law Dictionary, Smith explains that defendants are considered legally innocent when the prosecution fails to prove them guilty beyond a reasonable doubt. The Dowling ruling ignores the significance of the concept of “legal innocence” and offends notions of fairness and equality, Smith argues.
Smith also maintains that jury instructions to limit how they consider evidence about a prior acquittal fail to adequately protect defendants. He quotes a University of Pennsylvania Law Review article on the topic that states:
“It is difficult, if not impossible, for juries to ignore the prejudicial implications of other act evidence. … It is unlikely that simply because such evidence is introduced for some other limited purpose, juries will respond to it with any more reason and judgment than they otherwise would, or that they will ignore its obvious character implications. … One past [U.S.] Supreme Court Justice has even called the suggestion that juries follow such instructions an ‘unmitigated fiction.’”
Because the Ohio Supreme Court can recognize greater rights under the state’s constitution than the U.S. Supreme Court affords under the federal constitution, the Ohio Supreme Court can reject Dowling and offer more protections in this state, Smith notes. By doing so, the state would give meaning to acquittals and the finality of verdicts, and prevent “re-prosecution in perpetuity,” speculation about why a jury acquitted an individual, and overreaching by the government, he argues.
Prosecutor States 1986 Evidence Allowed Under U.S. Supreme Court Ruling
Based on Dowling, the Hamilton County Prosecutor’s Office responds that the 1986 case wasn’t relitigated in 2016 because a lower standard of proof applied when the 2016 jury considered the earlier case. Smith also was unable to show that his acquittal “actually determined” he didn’t engage in the 1986 acts, the prosecutor’s brief states. In addition, the office maintains that the burden was on Smith to produce the court record from 1986.
In Ohio, Rule 404(B) of the state’s Rules of Evidence generally prohibits evidence of other “crimes, wrongs, or acts” if used to prove a person’s character to show conduct that conforms with that character. But this type of evidence is allowed when it’s “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The prosecutor argues that Smith wasn’t placed in jeopardy of being convicted in 2016 of the offense for which he was acquitted. Instead, in accordance with Rule 404(B), his past conduct was used properly to show an exception applied, the prosecutor maintains. The office points to a 1917 ruling to note that the Ohio Supreme Court found an accused is barred even from introducing evidence that the prior acts resulted in an acquittal.
The prosecutor also maintains that the other-acts evidence from 1986 didn’t violate fundamental fairness in the current case. The 2016 jury was free to evaluate that testimony in any way, and the trial court had the authority to exclude any evidence that would create an unacceptable risk of a conviction based on inferences drawn from the 1986 case, the prosecutor contends.
On the issue of the court’s instructions to the jury, the office asserts first that a jury is presumed to follow the judge’s instructions. The prosecutor adds that the instruction limiting the purposes for which the jury could consider the 1986 evidence was read to the jury three times.
Grandfather Argues for Defendant Protections against Prior Acquittals
Smith argues the exceptions in Evid.R. 404(B) have been used in such a way that the protections for defendants have been “all but obliterated.” Whether to admit other-acts evidence is guided by a 2012 decision by the Ohio Supreme Court in State v. Williams, but Smith contends the trial court didn’t meet the Williams’ criteria.
Specifically, Smith maintains that the 1986 allegations were too old to consider in his current case; that the court must have access to the 1986 court’s record – such as filings and the transcript – but those were unavailable; and the two cases didn’t show a “unique behavioral footprint.” Smith also argues the court didn’t properly allow the acquittal evidence because the Rule 404(B) exception that applied wasn’t specified, and the court never explained how the probative value of the 1986 evidence outweighed the danger of unfair prejudice to him. Instead, his brief asserts, the evidence was introduced to show that Smith acted with R.E. in conformity with how he acted in the past – and that isn’t permitted by the court evidence rules.
He asks the Court to order a new trial on his convictions but bar any evidence about the 1986 case.
Prosecutor Maintains Court Rules Allowed Prior Case Evidence
The prosecutor counters that the requirements in Williams were met. First, the 1986 evidence of other acts was relevant “because it made determination of the action more or less probable than it would be without the evidence,” the office’s brief states.
Second, the prosecutor details the specific Rule 404(B) exceptions that it believes apply in Smith’s case. The brief argues the evidence showed that Smith’s behavior with R.E. wasn’t an accident. In his recorded phone call with Mychal, Smith said if he had touched R.E. inappropriately, it wasn’t intentional. The evidence also showed Smith’s plan of molestation, by indicating parallels between what happened to Smith’s older daughter and to R.E., the prosecutor states.
Third, the trial court’s hearings about the admissibility of the 1986 evidence and the limiting instructions for the jury demonstrate that the trial court prevented unduly prejudicial evidence from being considered in Smith’s trial.
The prosecutor asks the Court to uphold the First District’s decision and to adopt Dowling for considering acquittals in later cases in state courts.
Statewide Groups Submit Friend-of-the-Court Briefs
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Smith’s positions.
A brief supporting the Hamilton County prosecutor has been submitted by the Ohio Attorney General’s Office. The prosecutor and the attorney general will share the prosecutor's allotted time at the Supreme Court’s oral argument.
–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 Smith from the Hamilton County Public Defender’s Office: Krista Gieske, 513.946.3700
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Scott Heenan, 513.946.3227
Does New Owner of Auto Parts Maker Qualify for Reduced Unemployment Tax Rate?
Ohio Department of Job and Family Services v. Delphi Automotive Systems LLC, Case no. 2017-0553
Tenth District Court of Appeals (Franklin County)
ISSUES:
- For the purpose of setting a for-profit company’s unemployment compensation tax rate, does the “time of transfer” in R.C. 4141.24(G)(1) mean a specific date, or is it a period of time during which acts are necessary to complete the transfer?
- Under R.C. 4141.01(A)(1)(a), to be considered an “employer” for purposes of setting an unemployment compensation tax rate, must the employer employ at least one individual for some portion of the day in each of 20 different calendar weeks in either the current or preceding calendar year?
BACKGROUND:
Ohio’s unemployment compensation laws require every Ohio employer to make contributions to a trust fund that the state uses to pay unemployment benefits. The Ohio Department of Job and Family Services (ODJFS) is required to maintain a separate account for each employer and determine the employer’s contribution rate. A “new employer” is assigned a standard contribution rate of 2.7 percent. Based on experience of whether the employer has several or few unemployment benefit claims, the rate is adjusted up or down.
The federal government became aware that many states were experiencing shortfalls in the unemployment benefits tax funds because a practice called “dumping.” Dumping happens when an employer with high unemployment compensation tax rates purchases a business or creates a new business for the purpose of eliminating the current tax rate and qualifying for the lower new employer rate. Congress passed an “anti-dumping” statute that required states to conform with it. In 2005, Ohio amended R.C. 4141.24 to satisfy the federal requirements to prevent employers from dumping their existing tax rates.
Automotive Parts Company Seeks New Rate
In 2005, Delphi Corporation, a multinational auto parts manufacturer, filed for bankruptcy. Delphi had several subsidiaries in Ohio, including Delphi Automotive Systems Services. Two hedge funds formed a limited liability partnership under the law of England and Wales. The purpose of the new company was to acquire selected assets of Delphi. In transactions described as the transfer of “Old Delphi” to “New Delphi,” the hedge fund operators acquired several of the existing Delphi operations in Ohio in 2009. The transfer of the assets took place on Oct. 6, 2009, and at all times prior to that date, New Delphi didn’t have any employees in Ohio. Once the new ownership completed the transfer, more than 1,000 employees from Old Delphi became New Delphi employees, and a new board of managers was named to oversee the company. Within weeks New Delphi formerly approved the former top executives of Old Delphi to lead the operation.
Based on paperwork New Delphi filed with ODJFS and the department’s interpretation of the anti-dumping law, the new company was assigned Old Delphi’s unemployment compensation experience and taxed at a 6.8 percent rate for 2009 and an 8.7 percent rate for 2010. New Delphi appealed the decision, noting that it qualified as a new employer entitled to the 2.7 percent rate because it met the definition of a new employer under the tax rate law.
The Unemployment Review Commission affirmed the department’s position, and the company appealed the decision to the Franklin County Common Pleas Court. The trial court determined that New Delphi was a new employer under the statute, and reversed the commission’s decision. ODJFS appealed to the Tenth District Court of Appeals, which sided with the department, and reversed the trial court’s decision. New Delphi appealed the Tenth District decision to the Supreme Court, which agreed to hear the case.
Company Not an Employer Prior to Date of Transfer, Manufacturer Argues
Delphi argues for two reasons it is entitled to the new employer tax rate. First, it wasn’t an employer who employed anyone in Ohio before the transfer was completed in October 2009. Second, the companies aren’t under “substantially common ownership, management, or control.”
R.C. 4141.01(A)(1)(a), defines an “employer” as an entity that employed at least one employee for some portion of the day in each of 20 calendar weeks. At the time New Delphi purchased Old Delphi it had no employers in Ohio, let alone any that had worked for the company for the last 20 weeks, the company asserts. The New Delphi owners maintain the anti-dumping law is to prevent sham transactions by companies with the intent to reduce their tax rate. In contrast, New Delphi notes it’s a new company that bought the existing assets of a separate company and the two have no overlapping employees. For the 20 weeks prior to the transfer of assets, Delphi employees worked and were paid by Old Delphi. Hundreds of employees and the executive leadership of Old Delphi became employees of New Delphi after the transfer was complete, the company argues. Under the plain language of the law, New Delphi wasn’t an employer for tax rate purposes prior to October 2009 and should not inherit Old Delphi’s tax rate, the company concludes.
Company Not Under Common Ownership or Control
Another way a company is deemed an existing employer is if under R.C. 4141.24(G)(1), the company is under substantially common ownership, management, or control “at the time of transfer.” New Delphi argues that on the date of transfer, the ownership was transferred from one company to another through an arms-length transaction. The hedge funds which formed New Delphi were creditors of the former bankrupt Old Delphi but weren’t owners of the company. When they formed New Delphi, they were completely new owners of the company, and it wasn’t under common ownership. The company also employed the leadership team of Old Delphi at the time of transfer to facilitate the transaction. But the company noted, the leadership team was not formally hired by New Delphi until later in October 2009. At the time of transfer, which the company considers the Oct. 6 date, the company wasn’t under the control of common management, and the company contends it qualifies for the lower tax rate.
Company is the Same, Department Argues
ODJFS maintains that the time of transfer is not a single day, but the period that businesses naturally take to transition from one owner to another. It argues that if New Delphi’s position is accepted, many businesses will be able to avoid R.C. 4141.24(G)(1), which it labeled the “transfer law.” Any bad actor could structure the acquisition of an old business by acquiring the old business’ assets and waiting a few days to hire the old company’s management. The transfer exists to “prevent gamesmanship like this,” the department states in its brief . Allowing bad actors to get away with the evasion of taxes would mean Ohio would have to raise the rates of all other existing Ohio businesses to pick up the slack for those paying lower tax rates than their experiences would justify.
ODJFS notes that New Delphi’s director of taxation testified at the review commission hearing and stated that the old managers of Delphi performed duties immediately and were paid for their performance. The department notes on the date of the transfer, New Delphi issued a press release that specified Old Delphi President and Chief Executive Officer Rodney O’Neal would “remain” president and CEO and the current leadership team will “continue” to manage the company’s global operations. O’Neal and the leadership team were officially hired by the new board 17 days later, and by that date, New Delphi employed 882 of the 1,266 people it employs in Ohio, the department explains.
The company was also asked to submit ODJFS forms, and on them, New Delphi marked “yes” when asked if a portion of the business it acquired has “common ownership, management or control.” The company later maintained they marked the boxes in error, but the state argues New Delphi only made that claim after realizing the higher tax rate would be imposed.
Along with acknowledging the company was under common control, ODJFS maintains that the “time of transfer” is not a single day, but the period under which companies transfer their operations from one to the other. The 17-day gap between the official appointment of leaders and their actual work for the new company doesn’t allow New Delphi to claim that the leaders weren’t in control of the company on the actual day New Delphi designated as the day of transfer.
ODJFS maintains the period between Oct. 6 and Oct. 23 was a “transfer period,” and under that definition, the company also employed hundreds of workers under the definition of “employer” in R.C. 4141.01(A)(1)(a) and 4141.01(A)(1)(b), which means it must pay the tax rate assessed to Old Delphi.
–Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Delphi Automotive Systems LLC: Michael Ball, 614.464.6400
Representing the Ohio Department of Job and Family Services from the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980
Did Appeals Court Improperly Reduce Assault Conviction to Disorderly Conduct?
State of Ohio v. Sharon D. Fips, Case no. 2018-1778
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: When a reviewing court determines a criminal conviction isn’t supported by the manifest weight of the evidence, is a new trial the appropriate remedy?
BACKGROUND:
In October 2016, Sharon Fips and her son drove to the Ohio State Highway Patrol station in Brook Park to pick up a relative who had been arrested. Trooper Patrick Reagan met Fips in the lobby and noticed she smelled of alcohol and had glassy eyes. Suspecting she was intoxicated and would be driving, the trooper wanted to do a field sobriety test, but she refused.
Reagan enlisted the help of his supervisor, and Fips and her son became “agitated.” Fips’ son was told to leave the station, but he refused and was placed under arrest. Fips also was arrested. With his supervisor’s assistance, Reagan put Fips against the wall to handcuff her. Reagan said as he tried to handcuff Fips, she turned and kneed him in the groin. When she was tested later, her blood alcohol level registered 0.173.
Fips was charged with the assault of a peace officer. In February 2017, she waived her right to a jury trial, choosing to have the judge hear her case. The court found her guilty of the charge.
Appeals Court Modifies Conviction for Assaulting Police Officer
Fips appealed to the Eighth District Court of Appeals. The three-judge panel split, with the majority ruling the conviction wasn’t supported by the manifest weight of the evidence. Because the evidence showed Fips was intoxicated and belligerent, it was difficult to believe her action was intentional, which was necessary for an assault conviction, the Eighth District’s opinion stated. However, the court determined the evidence supported the lesser offense of disorderly conduct and modified the assault conviction, returning the case to the trial court for resentencing.
The Cuyahoga County Prosecutor’s Office asked the full 12-judge appeals court to consider the case. It granted the request, but split evenly on a decision. When that occurs, the panel’s earlier ruling stands.
The prosecutor appealed to the Ohio Supreme Court, asking whether appellate courts have the authority to modify convictions in these circumstances. The Supreme Court agreed to review the issue.
New Trial Was Appropriate Remedy, State Asserts
The prosecutor argues an appeals court can modify a conviction when it determines there isn’t sufficient evidence to support the conviction. However, the prosecutor notes, this case involves a claim about the weight of the evidence – a different legal claim. Challenges to the weight of the evidence concern which side offered more credible evidence, the office’s brief states.
The prosecutor points to a 1955 Ohio Supreme Court decision, State v. Robinson. The Court concluded that when it determines a guilty verdict or finding was based on sufficient evidence and returns the case to the appeals court – which then finds that the verdict or finding contradicts the weight of the evidence – the appeals court only has the authority to order a new trial, not to change the verdict.
The prosecutor argues the Eighth District wrongly modified not only the conviction in this case, but also convictions in other cases. The office concludes that when an appeals court finds the manifest weight of evidence doesn’t support a conviction, the correct remedy is a new trial. It asks the Court to reverse the Eighth District’s decision and remand the case for a new trial.
Evidence Was Insufficiet for Assault Conviction, Woman Argues
Fips counters that the Eighth District concluded the trial court’s decision was not only against the manifest weight of the evidence, but also legally insufficient to support an assault conviction. The appeals court found the greater weight of the evidence “tipped the scales” against conviction, and the evidence overall was lacking, as “reflected in the court’s statement that ‘one can infer that Reagan was inadvertently struck during Fips’ resistance to being handcuffed,’” Fips’ brief states.
The brief argues that, because no claim about the sufficiency of the evidence was raised in the appeal, the only logical interpretation of the appeals court ruling is that it sua sponte found the evidence to be insufficient. However, Fips states, the appeals court failed to follow directives from the Ohio Supreme Court for these situations. She maintains that the appeals court now must allow the parties to brief and argue this new issue.
Fips suggests that the case be returned to the Eighth District to take those steps, adding that there’s no need for the Court to hold oral argument in this case.
Attorney General Submits Brief, Will Argue Before Court
The Ohio Attorney General’s Office has filed an amicus curiae brief supporting the prosecutor’s positions. The attorney general also makes a recommendation:
“As this case demonstrates, state intermediate appellate courts, just like their federal counterparts, sometimes struggle to correctly apply settled law. And in this Court, as in the Supreme Court of the United States, some errors justify correction even if they present no significant or unresolved legal issues. In such cases, this Court should use the summary-reversal procedure that its Rules of Practice make available to it – thereby enforcing respect for its decisions without expending all the resources necessary to decide a case after oral argument.”
Following a joint motion from the prosecutor and the attorney general, the Court granted a request for them to share the oral argument time allotted to the prosecutor.
–Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Katherine Mullin, 216.698.6454
Representing Sharon D. Fips from the Cuyahoga County Public Defender’s Office: Francis Cavallo, 216.443.7223
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