Wednesday, May 3, 2023
In re T.D.S., a minor child, Case No. 2022-0359
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio ex rel. the International Association of Fire Fighters, Local 1536, AFL-CIO. v. John Barbish et al., Case No. 2022-0988
Eleventh District Court of Appeals (Lake County)
In re application of the East Ohio Gas Company, Case No. 2022-0458
Public Utilities Commission of Ohio
State of Ohio v. Joel Jordan, Case No. 2022-0736
First District Court of Appeals (Hamilton County)
Are Teen Suspect’s Statements Admissible When Miranda Rights Are Read Mid-Interview?
In re T.D.S., a minor child, Case No. 2022-0359
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- When police question a child first, then read Miranda rights, are the statements made by the child after the rights are read admissible in court?
- To determine whether a child “knowingly, intelligently, and voluntarily” waived Miranda rights, must courts assess all of the circumstances, including the child’s age, experience, education, background, intelligence, and capacity to understand?
BACKGROUND:
In September 2019, Cleveland police officers responded to a 911 call about shots fired at an abandoned apartment building. The caller gave a description of a person who exited the building after the shots. Officers went to the building and found a 14-year-old lying in the first-floor hallway. He had been shot. He was alive but couldn’t answer questions. The boy died the next day.
Detectives received a tip from a local high school employee that a 15-year-old student, identified in court documents as T.D.S., had shot the 14-year-old after an argument about a firearm. Police went to T.D.S.’s home. Three detectives entered the home to talk to him. The teen’s mother and sister were present. T.D.S. told detectives he wasn’t at the building on the day of the shooting. After an hour, T.D.S. said he accidentally shot the 14-year-old.
A detective read T.D.S. his Miranda rights, which inform suspects of certain constitutional rights, including rights to remain silent and have an attorney. The detectives and T.D.S. continued to talk. Officers then took the teen to a vacant lot to look for the firearm used in the shooting but didn’t find it. They also went to the vacant building where the shooting occurred. T.D.S. was taken to the police department for additional questioning.
Trial Court Considers Whether to Suppress Statements
In Cuyahoga County Juvenile Court, T.D.S. was alleged to have committed six offenses, including murder. In January 2021, the court held a hearing to consider suppressing the statements he made to detectives. The juvenile court agreed to block statements he made before the police read his Miranda rights. However, the court concluded that statements he made after his rights were read were admissible in the case.
The juvenile court found T.D.S. delinquent for acts that for an adult would be felony murder, felonious assault, tampering with evidence, and having a weapon illegally. T.D.S. was committed to the Department of Youth Services until the age of 21.
T.D.S. appealed to the Eighth District Court of Appeals, which upheld his convictions. He appealed to the Supreme Court of Ohio, which accepted the case.
Teen Argues Miranda Warnings Given Mid-Interrogation Not Proper
T.D.S. describes the police style of questioning in his case as a “deliberate two-step interrogation.” Police ask questions first, then read the suspect’s Miranda rights later during the questioning. However, Miranda only allows the use of statements the accused makes during a custodial interrogation when the accused is informed of the rights before questioning begins, he states.
T.D.S. points to a 2004 U.S. Supreme Court ruling, Missouri v. Seibert, which concluded that reading Miranda rights in the middle of an interrogation is likely to prevent suspects from understanding their rights and the consequences of abandoning them. In these situations, statements made by the accused after the Miranda warnings are inadmissible based on Seibert, T.D.S. argues.
The question-first, warn-later technique is more concerning when the accused is a juvenile, T.D.S. contends. The circumstances around the questioning affect whether a juvenile has voluntarily waived the rights, he argues. He is Black, a little more than 5 feet tall, and just over 100 pounds. Three white, armed officers entered his home and stood in various doorways, he states. He contends that the police offered him leniency, saying the judge wouldn’t sentence him to life in prison if he admitted involvement. When he was told by police that his 14-year-old friend had died, he started crying, then confessed, he maintains. It was at this point that the detective read him his rights.
After his rights were read, T.D.S. says he stood to talk to his mother, who was in the other room, but a detective grabbed his arm and made him sit again. He was arrested, and his mother and his sister weren’t permitted to go with him to the vacant lot or the house where the shooting occurred, he says. He adds that he wasn’t read his rights again at the police station before he had to make another statement. Under these circumstances and as a 15-year-old, he couldn’t have knowingly, intelligently, and voluntarily waived his rights, he concludes.
State Argues Teen Not in Custody, Circumstances Must Be Reviewed
The Cuyahoga County Prosecutor’s Office responds that the interview in T.D.S.’s living room wasn’t a custodial interrogation. Reading Miranda rights isn’t necessary when the person isn’t in custody, the prosecutor maintains. When Ohio appellate courts have considered whether minors questioned in their homes are considered to be in custody, they evaluate the circumstances, the prosecutor notes.
In this case, T.D.S.’s mother was present and allowed the detectives to question him. The prosecutor maintains that T.D.S.’s mother stayed in the room for the interview. T.D.S. asked her to leave at one point, but she remained nearby and spoke up at times. He was allowed to move around the room until he tried to get up when he was being read his rights, the prosecutor argues. At that time, T.D.S. was in custody, the prosecutor maintains. T.D.S. wasn’t in custody for the initial questions, though, and a reasonable child of his age would have felt free to end the questioning, the prosecutor asserts.
The prosecutor contends the evidence shows that T.D.S. understood what he was doing when he waived his rights. Nothing indicates that the police used coercive tactics, T.D.S. wasn’t restrained or mistreated during the initial questioning, he even challenged certain comments made by police, his mother was present for the entire interview, and he interacted freely with her, the prosecutor maintains. The prosecutor also asserts that T.D.S. wasn’t questioned when the police searched for the gun in the vacant lot, there is no requirement that a suspect be read Miranda rights more than once, and there was a poster about Miranda rights in the room at the police station. Given the circumstances, the statements made by T.D.S. after his rights were read are admissible, the prosecutor concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing T.D.S. from the Ohio Public Defender’s Office: Lauren Hammersmith, lauren.hammersmith@opd.ohio.gov
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Kristen Hatcher, 216.443.7800
Was Vacancy Created When Fire Chief Retired and Was Rehired the Next Day?
State of Ohio ex rel. the International Association of Fire Fighters, Local 1536, AFL-CIO. v. John Barbish et al., Case No. 2022-0988
Eleventh District Court of Appeals (Lake County)
ISSUES:
- When a fire chief in a classified civil servant system retires with the intent to be immediately rehired, does the retirement create a vacancy that must be filled through the competitive promotional examination process prescribed by state law?
- If a member of the promoted ranks of a classified civil service fire department resigns, can that member be reinstated only to the rank of regular firefighter?
BACKGROUND:
James Powers served as a member of the Wickliffe Fire Department for more than 30 years, and was promoted in 2009 to fire chief. Wickliffe operates its fire department through a classified civil service system governed by state and local civil service commission rules and regulations.
In late 2019, Powers was approaching 30 years of service and discussed with then-Mayor John Barbish the opportunity to “retire/rehire” in the role of fire chief. The mayor and city administrators assisted Powers in preparing his retirement submission to the Ohio Police and Fire Pension Fund. In January 2020, Powers submitted his official retirement paperwork to the city.
The next day, the city rehired Powers as fire chief. Three days later, the Wickliffe City Council approved an emergency ordinance to pay the fire chief an annual salary of $97,965, which was 10% less than what Powers was paid before retiring. The city indicated the purpose was to allow Powers to collect his pension while continuing to serve as fire chief.
In February 2020, the International Association of Fire Fighters, Local 1536, AFL-CIO, notified the Wickliffe Civil Service Commission of Powers’ retirement. The union asserted that Powers’ retirement created a vacancy in the fire chief position, and that position needed to be filled by competitive promotional examination. The union notified the commission that the department has fire captains qualified to take the exam and be promoted to fire chief. The commission declined to conduct an exam, indicating that Powers’ retirement and rehiring within 24 hours didn’t create a vacancy. Powers was never off the city payroll, and no separation from employment occurred that would trigger the promotional exam process, the commission ruled.
The union then filed a lawsuit against the mayor and city officials, arguing the city had no authority to rehire Powers and retain him as fire chief. The union claimed that under state law once Powers resigned as chief, any rehiring to the fire department could only be to the position of regular firefighter and not to a promoted rank in the department.
The city requested summary judgment, arguing that Powers never vacated his position and that its own civil service rules and state law allowed the city to reinstate Powers as fire chief. The Lake County Common Pleas Court agreed with the city. The union appealed to the Eleventh District Court of Appeals. In a split decision, the appeals court sided with the city.
The union appealed to the Supreme Court of Ohio, which agreed to hear the case.
Law Requires Exam Once Chief Retires, Union Argues
The union contends the Eleventh District and the city are ignoring a key distinction between the laws governing classified civil servants and non-classified civil servants. The General Assembly has enacted specific laws regarding classified civil servants, particularly those serving as police officers, firefighters, and emergency medical technicians, the union notes. The Wickliffe city charter also imposes specific rules for hiring and promotion of classified civil servants designed to protect candidates from undue interference from political influence, the union explains.
The parties dispute the meaning of “vacancy,” which isn’t defined in state statute or administrative code. The union notes that Ohio courts have found that under R.C. Chapter 124, a vacancy “occurs when a position that has been established and occupied becomes vacant by reason of death, retirement, dismissal, promotion or other permanent absence of the person that previously held that position.”
Powers retired, the union notes. He vacated the position, and that is proven by the fact that he stated to the pension fund that he resigned in order to collect his pension. The union also contends that Powers vacated the position because the city had to administer the oath of office to swear him into the fire chief position when he was rehired, and had to approve an ordinance to change the salary of the position.
The union argues the city wants to establish a new concept of “administrative” retirements as an exception to the mandatory civil service rules. The union acknowledges that state law allows for retired public employees to be rehired, and the pension funds provide guidance on how retirees can proceed through the “retire/rehire” process. But those laws and guidelines pertain to employees reentering non-classified civil service positions, and the provisions don’t supersede the laws governing the examination requirements for classified civil service jobs.
The union maintains that under R.C. 124.45, the city is required to use the competitive promotional exam process to hire a new fire chief. And under R.C. 124.50, if the city wants to retain Powers as a member of the fire department, he must first be placed in the position of regular firefighter without credit for seniority earned prior to resignation.
Position Never Vacated, City Maintains
Under state law, cities have the right to adopt charter provisions pertaining to local self-government, Wickliffe notes. Wickliffe’s city charter states that civil service examinations aren’t required for department heads and it didn’t have to use the exam process to hire Powers, it maintains. The union counters that the fire chief isn’t a department head. He reports to the director of public safety, who is the department head for the city’s divisions of police and fire.
The city points to R.C. 145.381, and contends that when a public employee retires to obtain pension benefits, the city is empowered to rehire the person in the same position within a year of retirement. The city notes that Powers didn’t even leave city service for a single day and could be reinstated to his chief position.
The city also supports the Eleventh District’s opinion that Powers didn’t create a vacancy when he retired. The appeals court noted the language of prior rulings defining a vacancy leaving by “death, retirement, dismissal, promotion or other permanent absence.” The words “or other permanent absence” indicates that Powers had to retire with the intent of permanently leaving the job, the court stated. The city notes Powers never expressed any intent to leave the job and never did. Because his only actions were to follow the process to obtain his pension while continuing to serve, the chief position wasn’t vacated and didn’t need to be filled by exam, the city concludes.
Chief Echoes City’s Arguments
Powers makes similar arguments that he didn’t vacate his office and didn’t intend to resign from the fire department. He maintains he followed the pension fund’s guidance to claim his pension while retaining his position and did so with the full cooperation of the city leaders.
He notes the city’s civil service commission is responsible for implementing state and local civil service laws and rules. The commission concluded that his retirement and reinstatement to the position didn’t create a vacancy. He asserts that the union has failed to indicate how the city or the civil service system was harmed by the actions. He notes that since 1991, Ohio law has authorized the rehiring of retired employees, and neither lawmakers nor the pension systems have indicated the practice has been unduly burdensome on the pension funds.
Friend-of-Court Briefs Submitted
An amicus curiae brief supporting the union’s position was submitted jointly by the Ohio Association of Professional Fire Fighters and the Fraternal Order of Police of Ohio. The Ohio Public Employers Labor Relations Association filed an amicus brief supporting Wickliffe and Powers.
– 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 International Association of Fire Fighters, Local 1536, AFF-CIO: Mark Guidetti, mguidetti@diemertlaw.com
Representing John Barbish et al.: John Latchney, jlatchney@hcplaw.com
Representing James Powers: Charles Galvin, cgalvin@fbtlaw.com
Was Rider a $73 Million Windfall Profit for Gas Company?
In re application of the East Ohio Gas Company, Case No. 2022-0458
Public Utilities Commission of Ohio
ISSUES:
- Were regulators authorized to base the rate of return for a natural gas distribution company’s rate plan on a rate of return approved from a prior, 12-year-old rate plan?
- When the Public Utilities Commission of Ohio staff becomes a party to a rate plan settlement, must staff disclose its communications with its commissioners to the other parties in the rate case?
BACKGROUND:
In 2019, the East Ohio Gas Company, which does business as Dominion Energy Ohio, sought approval from the Public Utilities Commission of Ohio (PUCO) of an alternative rate plan, which would increase the costs to provide natural gas in northeast Ohio. The proposal included a capital expenditures rider. The intent of the rider was to recover approximately $700 million in costs for infrastructure and technology improvements to Dominion’s distribution system. The upgrades occurred between 2011 and 2018, and for which customers had not yet been charged.
Prior to 2019, Dominion had last filed a rate plan in 2007. The PUCO approved that plan and a modification that extended the rates and authorized the approval of the capital investments. Dominion was to seek a new rate plan when the improvement costs reached a level where the customer impact would be equal to a $1.50 per month increase on their gas bills. When Dominion filed for the rider in 2019, the PUCO hired an independent consulting firm to audit the capital project. The commission stated it would allow Dominion to seek recovery only for investments the audit firm deemed permissible.
Dominion proposed that its alternative rate plan would run through 2024. State lawmakers authorized utilities to seek alternative ratemaking, which calls for a faster and more streamlined process than traditional ratemaking. The Office of the Ohio Consumers’ Counsel and the Northeast Ohio Public Energy Council (NOPEC), which represents communities that collectively purchase natural gas, intervened in the case. Dominion, PUCO staff, and the two consumer groups met several times to discuss a stipulated agreement on new rates and how much could be collected through the rider.
At the time the parties were negotiating in 2020, the nation was in the midst of the coronavirus pandemic. Dominion and PUCO staff proposed to base the 2019 plan’s new rate of return on the rate previously approved in the 2007 rate case.
Dominion and the staff proposed a rate of return, which provides funding to pay debt and earn a profit of 9.91%, based primarily on the rate of return approved in the prior case. The consumers’ counsel submitted an expert analysis that discussed the market conditions for public utilities and noted that rates of return for public utilities had hit historic lows during the pandemic. The expert estimated that the rate of return should be 7.2%. The expert concluded that if the PUCO approved a plan with the 9.91% rate, Dominion would gain a windfall profit from its customers of $97 million if the rates continued through 2024.
Through negotiations, Dominion modified its proposal and agreed to go through the traditional ratemaking process in 2023. The consumers’ counsel estimated that would reduce the windfall to $73 million, and still objected. The consumers’ counsel and NOPEC didn’t join the settlement. The PUCO staff did, and the commission approved the plan.
The two consumer advocacy organizations appealed the plan to the Supreme Court of Ohio, which must hear utility rate case appeals.
Plan Leads to Excess Profits, Consumer Advocates Assert
The consumer groups note that since 1994, the Supreme Court has provided a three-part test for approving rate plans reached through a settlement process in which all the parties didn’t agree. The test asks whether the settlement was a product of serious bargaining; if the settlement, as a package, benefits ratepayers and the public interest; and if the settlement violates any important “regulatory principle or practice.”
The consumer groups argue the Dominion plan doesn’t meet the test. The groups assert the PUCO violated a key regulatory principle that rates of return must be based on current market conditions. The consumer advocates note that lawmakers did relax the rules for ratemaking when they approved alternative ratemaking. But the law requires that the PUCO approve a rate that is “just and reasonable,” the groups assert. A key principle for determining if a rate of return is reasonable is whether it reflects current market conditions, the groups maintain. The PUCO has traditionally used the rate of return of a utility’s last approved rate plan to be the rate of return of an alternative plan. However, the consumer groups argue that is permissible if market conditions haven’t changed dramatically. Using a rate approved 12 years ago under significantly different conditions isn’t reasonable and leads to an inappropriate $73 million windfall, the consumer groups argue.
The groups also assert the due process rights of the ratepayers were violated during the process. When the PUCO was meeting to approve the plan, the interim chair thanked its staff for “working with commissioners” to better understand “everything in the case and how it came about.” The consumer groups note the role of the PUCO staff is to assist the commissioners in overseeing public utilities. However, once the staff becomes a party to a settlement proposal, it has the same status as all the other parties to a case, including Dominion and the consumer groups. No party can have undisclosed discussions directly with the commissioners at that time, the groups assert.
The PUCO staff and the commissioners refused to disclose what discussions took place during settlements and how that helped the commissioners, the consumer groups assert. Without knowing what was discussed, the groups couldn’t react or offer their perspectives during the negotiations and that violated the due process rights of the consumers they represent, they assert. The Court is being asked to vacate the settlement, reduce the rate of return, and order Dominion to refund the customers for the excess funds collected through the rider since its approval.
Appropriate Process Resulted in Fair Plan, Commission Maintains
The PUCO counters that under alternative rate plan law, the commission doesn’t have to consider “just and reasonable rates.” Instead, the commission determines if the company has proposed a “just and reasonable plan.” The overall plan provides a number of benefits to the consumers, including the improved technology and upgraded infrastructure that justified the approved rate of return, the PUCO contends.
The commission explains the main purpose of Dominion’s alternative rate plan was to implement the capital expenditure rider and to recover the investments it made in the company from 2011 to 2018. For more than a decade, it has used the same process to determine a rate of return when a utility is seeking to implement a rider, the commission states. It uses the rate of return established in the last rate case. That is what it did with Dominion, and that process is consistent with state alternative rate plan law, the commission asserts.
The commission notes the rate of return was supported by the independent audit, which found that Dominion was seeking recovery only for justifiable expenses. It also explains that it has used the process for other companies and that the consumers’ counsel has joined rate plan approvals for other gas companies using the exact same approach.
The PUCO also maintains that its communications with its staff followed all the appropriate procedures and that the consumer groups cannot point to any harm suffered by the discussions. The commission also argues that the Court shouldn’t consider the issue because the consumer groups raised the staff communications issue after the plan was approved. The objection was considered at a rehearing, where the commission rejected the allegation that its communications violated the law. The commission argues that under its process, the consumer groups needed to object again, and seek a second rehearing, which they didn’t. Therefore, they can’t appeal the issue to the Court, the commission argues. The commission urges the Court to approve Dominion’s rate plan.
Company Disputes Overearnings
The Court allowed Dominion to intervene in the case and argue on its own behalf. The company maintains that its rate proposal contains no overearning of profits and that the independent audit directed by the PUCO affirms that. Further, the commission used the process for approving its alternate rate plan by following the law and its own precedent, which it has used to approve riders sought by other natural gas providers.
Dominion asserts that no alternative rate plan law requires the rate of return to be set by current market conditions, and that the lower rate of return calculated by the consumer groups were based on figures from 2020, which don’t reflect the improvement costs between 2011 and 2018. Dominion also notes that its plan addressed concerns about the level of its rates by agreeing to initiate a new rate plan in 2023 instead of 2024. The company says the proposal meets the Court test of providing a plan that benefits ratepayers and the public interest, and PUCO’s order should be affirmed.
– 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: John Finnigan, john.finnigan@occ.oho.gov
Representing the Northeast Ohio Public Energy Council: Dane Stinson, dstinson@bricker.com
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Werner Margard, werner.margard@OhioAgo.gov
Representing the East Ohio Gas Company: Christopher Kennedy, kennedy@whitt-sturtevant.com
Can Sexual Imposition Conviction Be Based on Victim Being Blind?
State of Ohio v. Joel Jordan, Case No. 2022-0736
First District Court of Appeals (Hamilton County)
ISSUE: Can a defendant’s knowledge that a victim is blind meet the meaning of “substantial impairment” needed for a conviction of sexual imposition under R.C. 2907.06(A)(2)?
BACKGROUND:
A woman identified as S.W. lived at a Hamilton County residential facility for people with visual impairments. S.W. is considered legally blind and has some ability to see objects in close proximity. Joel Jordan worked at the facility as the night supervisor. As part of his compensation, Jordan was given an apartment at the facility. His responsibilities as the night supervisor were to safeguard the safety and well-being of the residents, to serve them meals and coffee, and to handle other tasks.
In March 2019, S.W. had been living at the home for four years, and Jordan had been employed there a little over a year. S.W. testified later that she was in the facility dining room one evening as Jordan was serving coffee. She was sitting at a table, and she and Jordan started talking about a television show. Jordan then brought up S.W.’s weight, saying she seemed too thin. S.W. said she tried to divert the discussion back to the TV show, but Jordan kept talking about her weight.
S.W. said Jordan offered to weigh her and measure her with a tape measure. She went to her room to look for one, then went to the fitness room to weigh herself. On the way, Jordan stopped her and asked her to come to his room. S.W. said he tried to look at the tag in her pants for her size and asked her to take off the pants to see the tag. He also asked her to take off other clothing. She recounted that Jordan brought up sexual topics, touched her sexually, and pushed her to engage in other sexual contact.
S.W. felt awkward and told Jordan it was almost time for her to go to sleep. She got dressed and left. She recalled that as she was leaving Jordan said the evening was “our little secret.”
Once back in her room, she called her parents and told them what happened. She also contacted the facility director about the incident.
Law Enforcement Looked Into Allegations
A Green Township Police Department detective arrived to investigate. Jordan said that S.W. initiated contact with him and asked him to look in his room for a journal he used to track his weight. He acknowledged that S.W. was in his apartment but denied any sexual contact. The detective reviewed footage from cameras in the common areas. The video aligned with S.W.’s account of events in the common areas and showed she was in Jordan’s room for about 20 minutes.
Jordan was indicted on two counts of sexual imposition. As part of the trial in March 2021, the Hamilton County prosecutor and Jordan agreed to provide information to the jury based on a psychological assessment of S.W. The doctor determined she lacked the capacity to consent to sexual activity. Jordan testified, and the video footage from the facility was shown.
The jury found Jordan guilty on both counts. The trial court merged the charges and imposed a 60-day jail sentence and $100 fine.
Jordan appealed to the First District Court of Appeals, which found that after the trial court merged the counts Jordan was sentenced on one count but not on the other. The First District reversed his conviction on the sentenced count. The appeals court returned the other count to the trial court for sentencing.
The Hamilton County Prosecutor’s Office appealed the overturned conviction to the Supreme Court of Ohio, which agreed to review the issue.
Blindness and Inability to Consent Amount to Substantial Impairment, State Contends
The conviction that was overturned was based on R.C. 2907.06(A)(2), a sexual imposition offense that prohibits sexual contact when “[t]he offender knows that the other person’s … ability to appraise the nature of or control the offender’s … conduct is substantially impaired.”
The prosecutor argues the evidence showed that S.W. has a substantial impairment. She is legally blind, and she doesn’t have the ability to consent to sexual activity, the prosecutor notes. These issues combined show S.W.’s substantial impairment, the prosecutor maintains.
The prosecutor also contends that Jordan had knowledge of S.W.’s impairment. Jordan’s regular interactions with S.W. during his year working at the facility made him aware of her physical limitations due to being blind and of her developmental challenges, the prosecutor maintains. The jury decided for itself that S.W.’s physical and mental abilities were substantial impairments that should be known to Jordan, who spent significant time interacting with her, the prosecutor argues.
Knowledge of Impairment Needed for Conviction, Offender Argues
Jordan stresses that substantial impairment requires more than a person’s blindness. His brief maintains that the record doesn’t show how he had knowledge of a substantial impairment. No witnesses who knew S.W. testified about how she was substantially impaired in a way that should have been obvious to him, the brief states. And there wasn’t evidence about obvious characteristics of S.W.’s inability to consent to sexual activity that he should have perceived, Jordan argues.
He also asserts that the prosecutor misrepresents the record about S.W.’s limitations and how much interaction they had. The prosecutor claims that S.W. lived at the facility because she couldn’t live independently, but the facility director described it as an independent living residence that provides no medical care, Jordan notes. The prosecutor also said Jordan and S.W. had daily interactions, but Jordan argues that was only assumed, not proven, by the state. The state didn’t prove beyond a reasonable doubt that he had knowledge of a substantial impairment, Jordan concludes.
– 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 Hamilton County Prosecutor’s Office: Ronald Springman Jr., ron.springman@hcpros.org
Representing Joel Jordan from the Hamilton County Public Defender’s Office: Sarah Nelson, snelson@hamiltoncountypd.org