Tuesday, February 6, 2024
State of Ohio v. Joshua E. Fork, Case No. 2023-0356
Sixth District Court of Appeals (Sandusky County)
In the Matter of R.G.M. and R.G.M., Case No. 2023-0514
Fifth District Court of Appeals (Muskingum County)
In the Matter of the Application of Ohio Power Company for an Increase in Electric Distribution Rates et al., Case No. 2023-0464
Public Utilities Commission of Ohio
Which Definition of ‘Motor Vehicle’ Applies to Aggravated Vehicular Assault?
State of Ohio v. Joshua E. Fork, Case No. 2023-0356
Sixth District Court of Appeals (Sandusky County)
ISSUES:
- Which definition of “motor vehicle” in state law applies to an aggravated vehicular assault offense that results from operating a vehicle under the influence of drugs or alcohol?
- If a vehicle wasn’t used for its principal purpose, must a court consider how the vehicle was used?
BACKGROUND:
Joshua Fork attended a party in Sandusky County in August 2020. During the evening, Fork decided to take a ride in his Polaris. The vehicle has a bench seat in the front for three people and a flat surface bed for hauling. Three other people at the party joined Fork for the ride.
Fork drove down a road and turned off onto a dirt trail. While making another turn, he lost control of the Polaris and it rolled on its side. One of the passengers was thrown from the vehicle. After help arrived, the passenger was taken to the hospital. He had a fractured forearm, requiring surgery, and a broken nose. The Polaris was transported to a barn on the property.
Officers from the Sandusky County Sheriff's Office went to the accident scene and looked for Fork, who was later found at his home. He was taken to the police station and given a breath alcohol test.
Fork was indicted for aggravated vehicular assault, operating a vehicle under the influence of alcohol (OVI), and tampering with evidence. Following a trial in September 2021, the jury found Fork guilty of the charges. He was sentenced to three years of community control, 60 days in jail, and a $500 fine.
Fork appealed the convictions for aggravated vehicular assault and tampering with evidence. The Sixth District Court of Appeals ruled that the Polaris is a utility vehicle, which is excluded from the definition of a “motor vehicle” in R.C. 4501.01. Because the Polaris was exempt, the Sixth District overturned the aggravated vehicular assault conviction. The court also overturned the tampering with evidence conviction.
The Sandusky County prosecutor appealed the Sixth District decision on the vehicular assault conviction to the Supreme Court of Ohio, which accepted the case.
Certain Sections of State Law Say Motor Vehicles Don’t Include Utility Vehicles
R.C. 4501.01 defines “motor vehicle” and states that motor vehicles don’t include utility vehicles. Utility vehicles are instead defined as “a self-propelled vehicle designed with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, lawn and garden, materials handling, or similar activities.” The statute explains that the two definitions apply in several motor vehicle laws and in criminal laws, except as otherwise provided.
Fork’s conviction for aggravated vehicular assault was based on a provision in R.C. 2903.08 – a criminal law – and the offense depended on a violation of R.C. 4511.19(A), which is operating a vehicle under the influence of drugs or alcohol.
Motor Vehicles in OVI Law Include Utility Vehicles, State Contends
The Sandusky County Prosecutor’s Office notes that Fork couldn’t have committed this particular aggravated assault offense without also committing OVI. For that reason, the definition of motor vehicles in R.C. 4511.01 for OVI offenses is the correct one to use, the prosecutor contends. The R.C. 4511.01 definition includes utility vehicles, such as Fork’s Polaris, the prosecutor maintains.
The prosecutor also argues that if the Court determines that the motor vehicle definition in R.C. 4501.01 instead applies to Fork’s case, then the phrase “principally for the purpose” in the utility vehicle exception becomes key. Fork testified that the principal purpose of the Polaris was for “farm work, hauling rocks, hauling bags of seed to the planter, [and] removing limbs and such from the farm.” The prosecutor notes, however, that Fork drove the Polaris on the night of the accident to take friends for a ride. Fork wasn’t using the Polaris for its principal purpose as a utility vehicle, so the exception in R.C. 4501.01 for utility vehicles doesn’t apply, the prosecutor contends. Because the Polaris was used that night as a motor vehicle, Fork’s conviction for aggravated vehicular assault should stand, the prosecutor concludes.
Vehicular Assault Can’t Involve Utility Vehicles, Driver Responds
Fork counters that the motor vehicle definition in R.C. 4501.01 clearly states that it applies to all criminal offenses, which includes vehicular assault. It doesn’t matter if the vehicular assault was committed while operating a vehicle under the influence, he argues. It’s correct that when deciding whether to convict for OVI, a jury or judge would apply the motor vehicle definition for traffic offenses, and that definition includes utility vehicles, he maintains. However, when determining whether vehicular assault was committed, the criminal code definition applies, and that definition excludes utility vehicles, Fork argues.
Fork notes that the OVI statute encompasses more vehicles than the vehicular assault law. Someone can be convicted of OVI while operating a non-motorized vehicle, for example, while vehicular assault is limited to motor vehicles, he states. He maintains that it was logical for the state legislature to impose a more serious criminal offense and punishment for those driving motorized vehicles because of the increased danger posed.
Fork also contends that how the Polaris was being used that night is irrelevant given the language in the utility vehicle exception in the vehicular assault law. “The State chooses to ignore the plain language of the statute,” Fork’s brief maintains. Based on the utility vehicle definition, courts look only at the vehicle’s principal purpose in its design and capabilities to determine whether it’s a utility vehicle, Fork argues. Nowhere in the law does it direct that the vehicle’s use at the time of the offense must be evaluated, he concludes.
State Prosecutors Group Files Brief
The Ohio Prosecuting Attorneys Association filed an amicus curiae brief supporting the Sandusky County prosecutor’s positions.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing State of Ohio from the Sandusky County Prosecutor’s Office: Kathryn Tucker Sandretto, ksandretto@sanduskycountyoh.gov
Representing Joshua E. Fork: Blaise Katter, hueylawfirm@gmail.com
Must Expert Who Submits Report Evaluating Parent Be Subject to Cross-Examination?
In the Matter of R.G.M. and R.G.M., Case No. 2023-0514
Fifth District Court of Appeals (Muskingum County)
ISSUE: Are a parent’s constitutional rights violated when a psychologist’s report evaluating the parent is admitted as evidence in a custody hearing, but the psychologist doesn’t testify?
BACKGROUND:
In September 2020, a woman identified as K.G. gave birth to twins in Muskingum County. Due to the mother’s mental health issues, the Muskingum County Adult and Child Protective Services asked the juvenile court for temporary custody of the twins. The court agreed, and the children, identified as R.G.M. and R.G.M., were placed in care of their aunt.
In July 2021, the agency filed a motion with the court requesting that the aunt be given legal custody of the twins. The court held a hearing in May 2022 on the request. An agency caseworker testified about the efforts made to return the twins to the care of their mother or their father. The father, identified as R.M., went through various assessments and subsequently told the agency that he supported placing the twins with their aunt rather than with him.
The caseworker also testified about a report by Dr. Gary Wolfgang, who completed a psychological evaluation of K.G. The agency asked the court to admit Wolfgang’s report as evidence. K.G.’s attorney objected, arguing that accepting the report without the psychologist present for cross-examination violated the mother’s right to due process.
The juvenile court disagreed. It found that a rule for juvenile courts allowed the caseworker to make hearsay statements about the psychologist’s report in this type of hearing. The court placed the twins in the legal custody of their aunt. K.G. appealed to the Fifth District Court of Appeals, which reversed the juvenile court. The Fifth District determined that K.G. should have had the right to cross-examine Wolfgang.
The child services agency appealed to the Supreme Court of Ohio, which accepted the case.
State Argues Parents Not Entitled to Cross-Examine Psychologist
The Muskingum County Prosecutor’s Office states that the Fifth District decision relied on a 2002 Supreme Court of Ohio decision, In re Hoffman. The prosecutor explains that the parents in that case faced permanent loss of their parental rights. A guardian ad litem had been appointed for the children to identify their best interests. The guardian ad litem report submitted to the court supported terminating the parents’ rights. The juvenile court wouldn’t allow cross-examination of the guardian ad litem. The Supreme Court ruled that the outcome was fundamentally unfair and that the parents had the right to question the guardian ad litem.
In this case, though, the prosecutor contends that giving legal custody to the twins’ aunt simply maintained the status quo by keeping the children with the person who had been taking care of them. Unlike the parents in Huffman, K.G. still has the right to visit her children and to object to an adoption, the prosecutor notes. Procedural protections, such as the right to cross-examine witnesses, aren’t as stringent when determining legal custody of a child as when terminating a parent’s rights, the prosecutor argues.
The prosecutor points to Rule 34(B)(2) of the Ohio Rules for Juvenile Procedure. The rule states that juvenile courts “may admit evidence that is material and relevant, including, but not limited to, hearsay, opinion, and documentary evidence.” The prosecutor maintains that the rule permits the court to consider the psychologist’s report without him being subject to cross-examination. The prosecutor also argues that K.G. could have subpoenaed the psychologist. If the state had to call the psychologist to court, the expense would be incurred by child services agency, which has finite resources, the prosecutor asserts. In addition, the time to arrange the testimony could delay the resolution of cases involving children, the prosecutor contends.
Mother Responds That Parents Have Right to Question Psychologist About Evaluation
K.G. counters that the procedural safeguards for permanent custody proceedings, where a parent’s rights may be terminated, also are appropriate for legal custody hearings. The Court in Hoffman explained that the right to due process isn’t limited to proceedings in which a parent’s rights may be terminated. K.G. notes that parents have a constitutional right to the care, custody, and upbringing of their children. She contends that there is a high risk of depriving parents of that right if they have no opportunity to cross-examine an expert who prepares a report for a court. Cross-examination is crucial for determining the credibility and reliability of the report, K.G. maintains.
She also cites the U.S. Supreme Court ruling in Melendez-Diaz v. Massachusetts (2009), a criminal case about the constitutional right to confront witnesses. The ruling stated that the power of a defendant to subpoena witnesses doesn’t undo the right to confront and question witnesses. The opinion also explained that the goal of the confrontation right is to ensure that evidence is reliable, which is assessed through cross-examination. K.G. acknowledges that her case is a juvenile, rather than a criminal, proceeding. However, she maintains, courts have found that the due process guarantees of the U.S. Constitution’s Fourteenth Amendment provide a similar right to confront witnesses for parents in juvenile proceedings when their fundamental right to raise their children is at stake. She adds that Ohio juvenile court rules must bend to ensure that the due process rights of parents aren’t violated.
K.G. also argues that the government’s interest in the timely resolution of cases doesn’t outweigh the right to cross-examine witnesses in a custody proceeding. Courts can handle the scheduling logistics using videoconferencing, depositions, and other strategies to minimize delays, K.G. maintains. Asking parents to use their financial resources to subpoena an expert to protect their due process rights would distort the constitutional rights of parents in the care of their children, K.G. concludes.
Other Parties Filed No Arguments
R.M., the twins’ father, didn’t file a brief in this appeal and will not be permitted to argue before the Court. The guardian ad litem also didn’t submit a brief and cannot participate in the 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 Muskingum County Adult and Child Protective Services from the Muskingum County Prosecutor’s Office: John Dever, jcdever@muskingumcounty.org
Representing K.G., the mother: Richard Hixson, rdhixson@mbmmwlaw.com
Representing R.M., the father: Robert Deitrick, 740.453.2566
Are Ratepayers Subsidizing Electric Company’s Power Generation Business?
In the Matter of the Application of Ohio Power Company for an Increase in Electric Distribution Rates et al., Case No. 2023-0464
Public Utilities Commission of Ohio
ISSUE: Did the Public Utilities Commission of Ohio improperly allow an electric company to recover costs to provide generation services when it approved an increase in its electric distribution rates?
BACKGROUND:
When Ohio deregulated monopoly electric companies, utilities were required to separate the three components of service: generation, distribution, and transmission. Distribution and transmission services remained as monopolies regulated by the Public Utilities Commission of Ohio (PUCO). The generation of electricity became a competitive service. Regulated distribution companies, such as Ohio Power Company, which does business as AEP Ohio, are required to connect customers to competitive distribution service suppliers. AEP must also be the default generation service supplier for customers who don’t want to shop for an alternative supplier.
In 2014, AEP Ohio sought approval from the PUCO to set a default rate for electric generation service for default customers. During that process, competing suppliers complained that AEP Ohio was subsidizing the true costs of providing generation services with money raised through customer charges for electricity distribution. The alternative suppliers argued this was stifling competition and thwarting the goals of state lawmakers to promote a robust market for energy generation. The PUCO responded by ordering AEP Ohio to conduct a study to determine if it collected generation-related costs through the distribution rates it charged to all customers.
AEP Ohio released the results of its study when it applied for an increase in distribution rates in 2020. The two-page study identified $4.7 million in costs associated with AEP Ohio providing default generation service to customers who didn’t shop for alternative suppliers. The study indicated that the $4.7 million was likely paid for through money collected from providing distribution services.
Interstate Gas Supply (IGS) provides natural gas and electric generation services. IGS is one of the alternative suppliers that AEP Ohio customers can choose for electric generation. IGS was among the parties in the distribution rate case that claimed AEP Ohio was using money from the distribution charges that all customers paid to subsidize AEP Ohio's electric generation rates. IGS suggested that the PUCO order AEP Ohio to develop two riders. The purpose of the riders was to charge the default customers more to prevent subsidizing their generation rates and discount the costs for all customers receiving service from AEP Ohio. IGS argued this would help foster competition by making all customers pay rates purely on the costs of generation. During PUCO proceedings, an IGS expert testified that AEP’s $4.7 million estimate was low and that the actual costs being subsidized by distribution rates were closer to $64 million.
The PUCO rejected the IGS estimate, faulting the method used by the IGS expert. However, the commission staff also found the AEP Ohio study lacking in detail and determined it couldn’t truly indicate how much money raised through distribution rates was actually used to offset the cost of providing default generation service. The PUCO staff recommended that AEP Ohio establish two riders to even out the costs, but at that time, decided not to set rates for the riders. The PUCO ruled that the riders could include rates in the future if more thorough studies determined whether AEP Ohio was receiving a competitive advantage.
IGS appealed the PUCO decision not to set rates for the riders to the Supreme Court of Ohio, which is required to hear these types of cases.
Costs Should Be Separated, Supplier Argues
IGS explains that Ohio lawmakers wanted monopoly electric companies to completely “unbundle” the costs of generation, distribution, and transmission to create a competitive retail electric service market. Doing so means the PUCO must separate what AEP Ohio collects in distribution income from what it makes by generating and selling electricity. IGS noted that AEP Ohio’s expert witness identified some specific items that all customers in its service territory pay through distribution rates that AEP Ohio uses to offset the costs of providing generation service to default customers. IGS argues that if the PUCO is going to set a distribution rate that allows AEP Ohio to continue to collect these charges, then it needs to fund the riders so that the money is returned to competitors’ customers to even the playing field. Allowing AEP Ohio to subsidize rates and not return money to competitors’ customers violates R.C. 4928.05(A)(1) and R.C. 4909.15, the supplier argues.
The PUCO maintained that the lack of clarity concerning subsidization justified not setting rates for the riders at this time. IGS argues that when there are “known and identifiable costs,” the PUCO must act to apply those costs to the appropriate type of service. In this case, there are identified generation costs that must be paid solely by customers getting default generation service, the supplier notes. The PUCO can’t “kick the can down the road to the next rate case,” because AEP Ohio didn’t do a thorough enough study, IGS states in its brief. The issue of subsidization has been before the commission since 2014, and any more delay is unjustified, IGS concludes.
Evidence Doesn’t Support Funding Riders, Commission Maintains
The commission states that it cannot authorize generation-related costs to be recovered by AEP Ohio through its approved distribution rates under Ohio law. In this case, the parties provided insufficient information to determine if AEP Ohio was recouping generation-related costs through the proposed distribution rates. The PUCO staff indicated that AEP Ohio’s accounting and internal tracking systems weren’t designed to separate costs, such as the call center operation and office space utilized to serve default generation customers and those choosing competitors. Without a more detailed study, there is no justification for raising or lowering customer bills by funding the riders, the commission states.
The PUCO asserts the IGS energy expert who estimated that the distribution rates could be subsidizing generation service by as much as $64 million used flawed methodology to reach that conclusion. The commission maintains that customers switch back and forth between choosing AEP Ohio as their generation supplier and competitors. Some of the costs raised through distribution rates also help AEP support the customers who choose competitors, the PUCO argues, and at this time, the practical solution is to require all customers to pay some of the generation costs through the distribution rates.
Identified Costs Would Not Justify Use of Riders, Company Argues
The Court permitted AEP Ohio to intervene in the case and argue for its proposed distribution rates. The company notes that the riders would have very little impact based on the AEP Ohio study, which found $4.7 million in potential costs that support the default generation service. If both riders were implemented, the average AEP Ohio default generation customers would be charged 23 cents per month more to take all the generation costs out of the distribution rate. The second rider would return 6 cents per month to all residential distribution customers, leaving AEP Ohio customers paying 17 cents more monthly, the company estimates.
AEP Ohio argues the law doesn’t allow distribution rates that have an “anticompetitive effect” on the market, and some generation costs can be recovered though charges to all AEP Ohio customers. The company notes that even IGS admits some customers are saving thousands of dollars on their energy bills through the current competitive market. AEP Ohio maintains the proposed funding of the two riders is so minor that there is no evidence to conclude the charges are hindering competition.
AEP Ohio urges the Court to dismiss the case. The company says IGS must demonstrate that it is actually harmed by the proposed distribution rates. At best, IGS claims that the rates could reduce competition in AEP Ohio service territory and have a long-term impact on the rollout of other competitive services, the company notes. Without a demonstration of harm, the PUCO approved rates should stand, AEP Ohio concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Interstate Gas Supply LLC: Joseph Oliker, joe.oliker@igs.com
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, Thomas.Lindgren@OhioAGO.gov
Representing Ohio Power Company: Steven Nourse, stnourse@aep.com