Tuesday, March 26, 2024
State of Ohio ex rel. City of Obetz v. Michael Stinziano, Franklin County auditor, and Cheryl Brooks Sullivan, Franklin County treasurer, Case No. 2023-0610
Writs of Mandamus and Prohibition
Marysville Exempted Village Schools Board of Education v. Union County Board of Revision et al., Case No. 2023-0964
Third District Court of Appeals (Union County)
In re National Prescription Opiate Litigation, Case No. 2023-1155
Certified Question from the Sixth U.S. Circuit Court of Appeals
State of Ohio v. Mark Gasper, Case No. 2023-0786
First District Court of Appeals (Hamilton County)
Can Property Taxes Be Kept From City to Pay for Improper Collection of TIF Funds?
State of Ohio ex rel. City of Obetz v. Michael Stinziano, Franklin County auditor, and Cheryl Brooks Sullivan, Franklin County treasurer, Case No. 2023-0610
Writs of Mandamus and Prohibition
ISSUE: Do the Franklin County auditor and treasurer have a legal duty to disburse property taxes to the city of Obetz and to refund payments made from special fund for property improvements?
BACKGROUND:
Local governments can establish tax-increment-financing (TIF) districts to finance property improvements for a public purpose. TIFs are designed to encourage property development by figuring the greater value of improved properties and diverting the increased tax revenue for project costs. The increases in the property value in the TIF district are exempt from property taxes. Instead, the property owner makes payments to a special fund to pay for the development.
In 1997, the city of Obetz, in Franklin County, approved a TIF district to develop a 643,000 square-foot warehouse owned by the Goodyear Tire & Rubber Company. The TIF required Goodyear to make semiannual payments into a TIF fund for 16 years instead of paying its full property taxes. The Ohio tax commissioner approved the tax exemption in 1999.
City Votes to Extend TIF for Goodyear
Obetz passed an ordinance in December 2017 to extend the Goodyear TIF tax exemption from 16 to 30 years. The city asked the Franklin County Auditor’s Office to approve the tax exemption. However, the auditor denied it. Obetz appealed to the Board of Tax Appeals (BTA), which upheld the auditor’s decision and concluded that the 2017 ordinance created a new exemption for Goodyear rather than extending the 1997 exemption.
Obetz appealed to the Supreme Court of Ohio. In its May 2021 ruling in Obetz v. McClain, the Supreme Court stated that Obetz couldn’t extend the TIF:
“Although appellant, the village of Obetz, enacted an ordinance in 2017 in an effort to reinstate the exemption after it expired in 2014, the exemption could not retroactively apply to tax years 2015, 2016, and 2017. … Because the 2017 ordinance created a new exemption rather than extending the prior one, the BTA reasonably and lawfully upheld appellee tax commissioner’s denial of an exemption for tax years 2015, 2016, and 2017.”
Obetz acknowledges that the Court decided the payments collected and deposited into the Goodyear TIF fund for some tax years should have been paid instead to the appropriate tax recipients, which includes school districts, parks, and libraries.
County Contacts City Seeking Repayment of Taxes That Weren’t Exempt
In August 2021, the tax unit at the Franklin County Prosecutor’s Office contacted the law director for Obetz after the McClain decision to discuss resolving the tax issue. The prosecutor stated that Obetz improperly received $1.55 million in payments for the TIF for tax years 2015 and 2016. Obetz agreed to turn over to the Franklin County auditor about $213,000 that was in the Goodyear TIF fund at that time. Obetz says the county prosecutor reached out again several weeks later claiming that the city needed to repay $2.44 million that was overpaid to the TIF fund (before subtracting the $213,000 payment).
For real estate payments due to Obetz for the first half of 2022 and distributed to the city in late March 2023, the auditor deducted $194,944, leaving zero dollars for the city. The auditor reallocated the funds to other government subdivisions, according to Obetz.
In May 2023, Obetz filed a complaint with the Supreme Court of Ohio asking for writs ordering the county auditor and treasurer to return the withheld real estate distributions and to stop the Franklin County officials from taking further funds without authorization. The county auditor and treasurer requested oral argument in the case, maintaining that it raises important questions of Ohio law about the authority of county auditors and treasurers to correct previous errors in property tax distributions. Obetz opposed oral argument. The Supreme Court granted the request to hear the case.
City Maintains That Auditor, Treasurer Can’t Take Funds Subject to Reimbursement
Obetz argues that the Franklin County officials had no legal authority to withhold the city’s property taxes. Without authority, the auditor and treasurer calculated the amounts to be redirected after McClain, made unilateral decisions about adjustments, and withheld property taxes that were owed to the city, Obetz maintains. The city asserts that state law doesn’t allow the county officials to retroactively reallocate funds on their own. An auditor can address clerical tax errors, but the McClain decision pointed to a fundamental error that doesn’t fall within the auditor’s authority to fix, the city argues.
The city contends that the auditor also ignored attempts by the city to negotiate reimbursement plans with the affected groups, such as school districts. Instead of allowing Obetz to resolve the disputes over the TIF funds, “the [a]uditor engaged in self-help to redistribute funds without authority. [The auditor and treasurer] have thus taken matters into their own hands to fashion a remedy outside of their statutory authority – and contrary to their statutory duty,” the city’s brief states.
The city notes that it budgeted and planned to use the $194,944, but was left with nothing. That money was wrongly withheld by the tax officials and should be returned, the city argues. It also maintains that the officials must return the earlier $213,000 payment made by Obetz from the Goodyear TIF fund and must disburse future real estate funds with no deductions for alleged improper withholdings for the 2015 and 2016 tax years.
Auditor, Treasurer Argue That Improper TIF Fund Payments Must Be Paid Back
The county officials counter that state law gives the auditor the discretion to correct any errors that occur when distributing taxes. The law that applies to these circumstances doesn’t limit the authority of the auditor and treasurer to only clerical errors, the officials maintain.
They contend that there were errors related to the TIF and other related tax exemptions allowed from 1999 to 2016. Tax monies that should have been distributed to others were improperly given to Obetz for deposit into the Goodyear TIF fund, the officials argue. They calculated the erroneous overpayments into the TIF fund to be about $2.5 million.
They explain that a final tax determination by the state tax commissioner found that the 1997 Obetz ordinance granted a partial tax exemption to Goodyear for 16 years. That exemption expired in 2014, and the Goodyear property should have been taxed normally without the TIF exemption for tax years 2015, 2016, and 2017, the commissioner concluded. As required by statute, the auditor then calculated the amount of taxes due to the affected tax recipients but erroneously distributed to the Goodyear TIF fund, held by Obetz. The auditor concluded that state law required the office to process the necessary credits and deductions to correct the erroneous overpayments. The auditor is taking steps to correct the error caused by Obetz receiving $2.5 million in tax dollars that the city knew it had no right to receive, the county officials conclude.
Local Groups Supported by Taxes Submit Arguments
An amicus curiae brief supporting the positions of the Franklin County auditor and treasurer was submitted jointly by the Columbus Public Library, Columbus and Franklin County Metropolitan Park District, Columbus Zoological Park Association, Franklin County Board of Commissioners, and Hamilton Township – local entities that would have received tax revenues from the Goodyear property if Obetz hadn’t held them in the TIF fund.
– 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 City of Obetz: O. Judson Scheaf III, jud@scheaf-law.com
Representing Michael Stinziano, Franklin County auditor, and Cheryl Brooks Sullivan, Franklin County treasurer, from the Franklin County Prosecutor’s Office: Charles Ellis, cellis@franklincountyohio.gov
Can School Board Appeal Tax Challenge After Change in State Law?
Marysville Exempted Village Schools Board of Education v. Union County Board of Revision et al., Case No. 2023-0964
Third District Court of Appeals (Union County)
ISSUE: Can a board of education contesting a county property valuation before a July 2022 state law change file an appeal with the state Board of Tax Appeals after the law took effect?
BACKGROUND:
Ohio law had allowed local school boards of education to be a party to cases regarding the valuation of real property within the local school district. Once a county auditor valued a property, the property owner and specified local government bodies could contest the valuation by appealing to the county board of revision. A board of revision decision on the valuation could be appealed to the state Board of Tax Appeals (BTA).
In April 2022, state lawmakers revised R.C. 5717.01 to limit when school boards could contest the valuation of a property. The new law, which took effect on July 21, 2022, stated that school boards can appeal valuations to the county board of revision but can’t appeal to the BTA unless it was a valuation of property owned or leased by the school district.
In February 2022, Union County residents David and Dean Cook contested the Union County auditor’s valuation of their commercial property, The Residence at Cooks Pointe, for the 2021 tax year. The Cooks sought an increase in the property valuation. In May 2022, before the change in state law, the Marysville Exempted Village Schools Board of Education filed a counter-complaint, also seeking an increase in the valuation.
In September 2022, after the change in state law, the board of revision upheld the auditor’s valuation. The Marysville school board appealed the decision to the BTA. The BTA dismissed the appeal, citing the change in R.C. 5717.01. The BTA relied on another of its decisions, which found that the right of school boards to appeal to the BTA ended on July 21, 2022, when the new law took effect, regardless of when the appeal process started at the local level.
The school board appealed the BTA decision to the Third District Court of Appeals, which reversed the decision, finding Marysville could still appeal a valuation regarding tax year 2021.
The Cooks on behalf of their business entity, The Residence at Cooks Pointe, appealed to the Supreme Court of Ohio, which agreed to hear the case.
Right to Appeal Ended in July, Landowners Argue
The Cooks argue the BTA correctly ruled that the new restriction on school boards became active on the date the law took effect. Since the school board filed its appeal after July 2022, the BTA ruled it had no jurisdiction to consider the matter and dismissed it. The issue in this case, the Cooks explain, is the Third District’s interpretation of a portion of R.C. 5717.01. The law states that a county auditor, the state tax commissioner, or any board, legislative authority, public official, or taxpayer authorized by section R.C. 5715.19 can appeal to the BTA “except that a subdivision that files an original complaint or counter-complaint under that section with respect to property the subdivision does not own or lease may not appeal the decision of the board of revision with respect to that original complaint or counter-complaint.”
The Third District relied on the present tense “that files” to mean only appeals filed after the law took effect in July 2022. Since Marysville filed its counter-complaint in May, before the law took effect, the appeals court found the school board could proceed. The Cooks maintain the appeals court is reading too much into the words “that files,” and the overall intent of the law was to eliminate any appeals related to land not owned by the school board once the law took effect.
The landowners maintain that the court has no right to alter the law's effective date by allowing appeals to the BTA to be filed after July 2022. They argue that the law’s phrase “subdivision that files” only describes which bodies can no longer contest property they don’t own. The reference to the “complaint and counter-complaint” essentially notes how a non-property owner becomes a party to the case, the landowners assert, but the right to appeal to the BTA isn’t tied to when the complaint was filed, or who filed it.
The Cooks also note that the right to appeal to the BTA only exists after a decision is made by the board of revision. A party doesn’t know if it has a right to appeal until the board of revision rules against the party, they explain. In this case, the board of revision ruled against Marysville in September 2022, months after the change in law took effect. The Cooks argue as property owners they had a right to appeal to the BTA. But by September 2022, there was no longer a right for the school board to appeal, they conclude.
Appeals Court Ruling Should Stand, School Board Asserts
The school board argues that in dismissing its appeal, the BTA overlooked critical portions of the revision to R.C. 5717.0, including a reference that the law applies to cases for tax year 2022 and after. Maryville schools’ case is about 2021. The board notes that since the Third District decision, the Fifth and Tenth District Courts of Appeals have also ruled that BTA appeals from school boards regarding tax year 2021 can proceed. The school board notes that only Cuyahoga and Franklin counties were so delayed by property tax appeals that their tax year 2021 cases remain pending before the BTA. Since the appeals courts considering the issue have all sided with the school boards, and only a few cases remain, the board suggests the Supreme Court dismiss the case as improvidently allowed.
If the Court decides to rule, it should consider that the language of R.C. 5717.01 clearly indicates the law only applies to complaints initiated at the local level after July 2022, the school board argues. The BTA interpreted the intent of the law was to end appeals by school boards that didn’t own the contested property, but the BTA failed to actually analyze the law itself, the school board argues. The BTA’s interpretation completely ignores the provision of the law stating “that files an original complaint or counter-complaint under that section.” Lawmakers specifically included the reference to the filing of the original complaints to the board of revision for a reason, the school board notes. The reference clarifies that the new law applies to cases that originate after July 2022 at the board of revision level, the school board maintains. Since its complaint is about tax year 2021 and was filed with the board of revision in Union County before July 2022, it still has the right to appeal the valuation to the BTA, the school board concludes.
Parties Not Permitted to Argue
Several other parties were formally named in the case but did not file briefs and aren’t participating in oral arguments. That includes the Union County Board of Revision, the Union County auditor, the state tax commissioner, and the Cooks on behalf of themselves.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Cooks’ position was submitted by the Ohio Chamber of Commerce.
– 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 Residence at Cooks Pointe LLC.: Nicholas Ray, nmray@vorys.com
Representing Marysville Exempted Village Schools Board of Education: Mark Gillis, mgillis@richgillislawgroup.com
Can Pharmacies Be Sued for Being Public Nuisance When Dispensing Opioids?
In re National Prescription Opiate Litigation, Case No. 2023-1155
Certified Question from the Sixth U.S. Circuit Court of Appeals
ISSUES:
- Does the Ohio Product Liability Act eliminate the ability to use other legal theories to claim the sale of a legal product is a public nuisance?
- Does the Product Liability Act prevent county governments from seeking funds to abate the nuisance?
BACKGROUND:
Lake and Trumbull counties collectively brought a lawsuit against three national chain pharmacies – CVS, Walgreens, and Walmart – for their role in dispensing prescribed opioid medications in their communities. The counties claimed the pharmacies created a public nuisance by disregarding “red flags” and other measures to guard against flooding the community with pills not used for their prescribed purposes. The lawsuit was one of thousands from across the nation against the makers and sellers of opioids. Those cases were all consolidated into a federal multidistrict litigation case in a U.S. District Court in Cleveland.
The district court used the Lake and Trumbull counties case as a “bellwether” trial to test the claims of government bodies suing the pharmacies for creating a public nuisance. A jury found the pharmacies liable for contributing to a public nuisance. The counties claimed the funds they sought in the case were not “damages” but “abatement relief.” The trial court adopted the counties’ $650.9 million abatement plan. The plan included measures to treat county residents suffering from opioid addiction, distribute medications to reverse opioid overdoses, train first responders, and educate the public on the prevention of opioid addiction.
The pharmacies appealed the decision to the Sixth U.S. Circuit Court of Appeals. Among their arguments was that only the Ohio Product Liability Act (OPLA) provisions can be used to file a lawsuit seeking compensation for the marketing, distribution, or sale of a product. The pharmacies noted that in 2007, Ohio lawmakers amended the OPLA to include “any public nuisance” claim. The counties countered that the OPLA doesn’t apply to this case.
The Sixth Circuit asked the Supreme Court of Ohio whether the OPLA eliminates the use of any other legal theory to claim a public nuisance resulting from the sale of a product when the plaintiff is seeking abatement assistance in the form of monetary compensation and injunctions. The Supreme Court agreed to answer the question.
Law Bans Public Nuisance Claim for Sale of Legal Products, Pharmacies Assert
The pharmacies maintain the OPLA defines two types of product liability claims. The first paragraph of R.C. 2307.71(A)(13) defines a product liability claim that seeks compensatory damages from a manufacturer or supplier whose product caused death, physical injury, emotional distress, or property damage. The second paragraph, added in 2007, states that a product liability claim “includes any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public.”
The federal district court sided with the counties in finding that both paragraphs defining product liability claims are limited to cases where the plaintiff is seeking compensatory damages. The district court ruled that the counties were not seeking compensatory damages but a distinctly different remedy in the form of equitable relief, which doesn’t involve payment of money for past damages, but funding to prevent further harm. Since the counties weren’t suing for compensatory damages, the OPLA didn’t apply, the court concluded.
The pharmacies argue the trial court misinterprets the statute. The first paragraph regards lawsuits against a product manufacturer or supplier that seeks compensatory damages. The second paragraph is completely separate. It bars lawsuits from making “any public nuisance claim” other than those that follow the OPLA, the companies maintain. The counties’ lawsuit doesn’t follow the OPLA, and they can’t use any other public nuisance theory to sue the companies, the pharmacies assert.
The pharmacies argue other state laws support this interpretation. Other statutes permit common law public nuisance lawsuits involving “contamination or pollution of the environment.” Another provision specifically allows pharmacies to be sued for a public nuisance relating to the sale of controlled substances. However, the law only provides for the imposition of an injunction and not for compensation from the pharmacies. These specific laws indicate the legislature's intent not to permit any other public nuisance lawsuits against the sellers of products.
Product Liability Law Not Applicable, Counties Maintain
The counties argue that the trial court correctly found that the OPLA doesn’t apply to the case. First, the counties maintain that the OPLA pertains to “defective products,” and nothing in the legislation or its history indicates that it applies to legal products, such as prescription opioids. The counties argue their lawsuit pertains to the illegal dispensing practices of the pharmacies that ignored state and federal laws as well as internal procedures that led to flooding the counties with pills. Second, the OPLA applies to cases seeking compensatory damages, which is money to recover from the losses suffered by the damages caused by a defective product. Equitable abatement is a separate theory that doesn’t seek compensation to recover losses, but instead seeks funds to be used in the future to mitigate the damages caused by the nuisance. Any law that would restrict the rights of government bodies to abate a public nuisance would have to clearly indicate that, the counties argue, and the definitions in R.C. 2307.71(A)(13) don’t.
The counties note lawmakers purposely used the words “also includes” when adding public nuisances to the OPLA. That means claims of public nuisance are included in the definition of a product liability claim that seeks compensatory damages, the counties argue. They assert that it doesn’t bar all claims based on the theory of public nuisance, just those seeking compensatory damages. Local governments regularly file public nuisance cases in all types of situations to protect public health and safety, the counties note.
The counties also claim it is disingenuous for the pharmacies to claim the OPLA protects them as “sellers” of opioids. In another case, where a manufacturer’s defective product was sold by pharmacies, the companies claimed they were excluded from the OPLA’s definition of sellers because they were “dispensers” of prescription drugs. The counties conclude the OPLA doesn’t apply to the pharmacies because they aren’t being sued for selling defective products but rather for illegally dispensing a legal product.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting CVS, Walgreens, and Walmart was filed by the Product Liability Advisory Council. The U.S. Chamber of Commerce and the American Tort Reform Association submitted a joint brief supporting the pharmacies. The Ohio Chamber of Commerce and the Ohio Alliance Civil Justice filed a joint brief in support of the pharmacies, as did the Buckeye Institute.
An amicus brief supporting Lake and Trumbull counties’ position was submitted by Cleveland Building & Construction Trade Council. Another amicus brief supporting the counties was jointly filed by:
- County Commissioners Association of Ohio.
- Fraternal Order of Police of Ohio.
- Ohio Association of County Behavioral Health Authorities.
- Ohio Mayors Alliance.
- Ohio Municipal League.
- Ohio Township Association.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing CVS Pharmacy: Donald Verrilli Jr., donald.verrilli@mto.com
Representing Walgreens: Jeffrey Wall, wallj@sullcrom.com
Representing Walmart Inc.: Noel Francisco, njfrancisco@jonesday.com
Representing Lake County and Trumbull County: Peter Weinberger, pweinberger@spanglaw.com
Do Limited Intellectual Abilities Qualify as Substantial Impairment in Rape Case?
State of Ohio v. Mark Gasper, Case No. 2023-0786
First District Court of Appeals (Hamilton County)
ISSUE: In a prosecution for rape, does a permanent mental condition fall under the definition of “substantial impairment” in the Supreme Court of Ohio decision State v. Zeh (1987)?
BACKGROUND:
A couple identified as “Mr. and Mrs. W.” had three children and adopted nine children with developmental disabilities. The parents hired health care workers from Interim Health Care to assist them with the children at their Hamilton County house. Mark Gasper was employed by Interim and helped care for four of the children.
In 2017, Gasper, who was in his 60s, had been working in the household for about three years. One adult daughter, identified as K.W., has cerebral palsy and lived at home. She didn’t work or drive. K.W. later testified that in the fall of that year, Gasper began making sexual advances toward her. She takes medication every day for her cerebral palsy. She increases her medication at night, which makes her sleepy. One evening, K.W., who was 32 at the time, had fallen asleep on a couch on the lower level of the house, where Gasper did most of his work with the children. Gasper woke her. K.W. said she thought Gasper was helping her walk to her bedroom. Along the way, though, Gasper tried to kiss her. She turned her head away. He made other sexual advances toward her, and she resisted. She said she finally gave in because she knew he wasn’t going to quit.
Gasper and K.W. engaged in sexual activity for more than a year. She testified that she was scared, ashamed, and worried Gasper would do something to her mother or siblings if she stopped having sex with him. One day, Gasper accidentally sent a text message to K.W.’s father that raised suspicions. Mrs. W. talked with K.W., and Mr. W. reported the incident to the police. K.W. was interviewed by a social worker in July 2019 and then by a psychologist for the Hamilton County Developmental Disabilities Services (DDS).
Rape Charges Allege Woman’s Ability to Consent Was Substantially Impaired
In November 2019, a Hamilton County grand jury indicted Gasper on seven counts of rape involving substantial impairment. Based on R.C. 2907.02(A)(1)(c), the prosecutors alleged that Gasper had sexual conduct with K.W., whose “ability to resist or consent was substantially impaired because of a mental or physical condition,” and that Gasper “knew or had reasonable cause to believe that K.W.’s ability to resist or consent was substantially impaired because of a mental or physical condition.”
At the trial before a jury, the Hamilton County DDS psychologist testified for the state about K.W.’s ability to consent to sexual activity. He found that K.W.’s intellectual functioning was in a borderline range between normal intellectual functioning and an intellectual disability. The condition limited her ability to deal with unfamiliar circumstances or stressful situations, like those involving Gasper, the psychologist said. He also found that K.W.’s general sexual knowledge was consistent with that of people with a more significant intellectual disability, and he determined that her activity with Gasper wasn’t voluntary. K.W. told Gasper, “No,” repeatedly and said she only continued having sex with him out of fear. The psychologist concluded that K.W. didn’t have the ability to consent to sexual activity.
Another psychologist interviewed K.W. and testified for the defense. The psychologist stated that K.W. was below average in intellectual functioning but didn’t have an intellectual disability. The defense psychologist determined K.W. was knowledgeable about sex, noting that K.W. went to the doctor during that time to discuss protection against pregnancy and infections. K.W. listed the sexual activities with Gasper, and the psychologist reviewed text messages between the two. K.W. also told the psychologist that she sometimes didn’t consent to sex with Gasper. The psychologist noted that K.W. was dependent on her family and may have been influenced by their expected disapproval if the relationship were seen as consensual. The psychologist concluded that K.W. was able to consent to sex because there wasn’t a substantial impairment caused by a mental condition.
Jury Given Instruction on Meaning of ‘Substantial Impairment’
The jury was provided an instruction about “substantial impairment.” The instruction, taken from the 1987 Supreme Court of Ohio decision in State v. Zeh, said, “Substantially impaired means a present reduction, diminution or decrease in the victim’s ability either to appraise the nature of her conduct or to control her conduct.”
During deliberations, the jury asked whether in determining K.W.’s ability to resist or consent they could consider the evidence about the medication she takes that makes her sleepy. The trial judge told the jurors they needed to rely on the jury instruction provided.
About 30 minutes later, the jury returned its verdicts – guilty on one count of rape, not guilty on the others. The court sentenced Gasper to 11 years in prison.
He appealed to the First District Court of Appeals, which upheld the conviction. He appealed to the Supreme Court of Ohio, which agreed to review the issue.
Health Care Worker Argues Verdict Can’t Be Based on Woman’s Sleepiness
Gasper points to the explanation of “substantial impairment” in Zeh, including a sentence that wasn’t part of the jury instruction at his trial. The Supreme Court in Zeh wrote:
“As cogently stated by the appellate court, substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his conduct. This is distinguishable from a general deficit in ability to cope, which condition might be inferred from or evidenced by a general intelligence or I.Q. report.”
Gasper notes that the state based the prosecution on K.W.’s permanent mental condition related to her borderline intellectual functioning. However, Zeh explains that substantial impairment applies to temporary conditions and doesn’t encompass permanent conditions, Gasper argues. He contends that when the jurors asked whether they could consider the effect of K.W.’s medication on her ability to consent, the judge should have answered no. The effect of K.W.’s medication wasn’t the basis for the state’s prosecution, and the state couldn’t shift to allow the jury to instead consider her condition caused by the medication, Gasper maintains. He argues he was denied the right to be informed of the charges against him and to prepare a defense against those charges. He concludes that he is entitled to a new trial.
State Counters That Intellectual Deficits Can Be Substantial Impairment
The Hamilton County Prosecutor’s Office agrees that the rape charge was based on K.W.’s borderline intellectual functioning. While that describes a permanent mental condition, limited intellectual function is also a “substantial impairment” because it is always present, the prosecutor contends. As Zeh explains, substantial impairment is “a present reduction, diminution or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his conduct,” the prosecutor notes.
The prosecutor argues that there was no change during the trial to the charges and no shift in trial strategy. The First District agreed, writing:
“The state did not change its theory of the case or the nature of the charges. It was the jury that asked about K.W.’s medication. The trial court’s response – that the jury was to use the instructions that the court had already provided – was not a ‘green light’ for the jury to consider improper evidence. Instead, we presume that the jury followed the original jury instructions.”
The prosecutor notes no interrogatories were given to the jury to find out the reasons for its differing verdicts on the separate counts. The First District refused to speculate on why the jury convicted Gasper of the first count yet acquitted him on the remaining counts. The prosecutor maintains that differing verdicts don’t entitle a defendant to a new trial when the court doesn’t know the basis for the jury’s verdicts.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mark Gasper from the Hamilton County Public Defender’s Office: David Hoffmann, dhhoffmann@hamiltoncountypd.org
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Philip Cummings, phil.cummings@hcpros.org