Tuesday, July 23, 2024
State of Ohio v. Jaidee Miree; State of Ohio v. Desmond Duncan Jr., Case Nos. 2022-1449 and 2022-1458
Eighth District Court of Appeals (Cuyahoga County)
In the Matter of the Letter of Notification Application of Columbia Gas of Ohio Inc. for the Ford Street Pipeline Project, Case No. 2023-0649
Ohio Power Siting Board
State of Ohio v. Alonzo Kyles, Case No. 2023-1182
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Niquan M. Dunn, Case No. 2023-1501
Eleventh District Court of Appeals (Geauga County)
Does Change in Self-Defense Law Apply to All Trials After Law Took Effect?
State of Ohio v. Jaidee Miree; State of Ohio v. Desmond Duncan Jr., Case Nos. 2022-1449 and 2022-1458
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Does a change in state law eliminating a duty to retreat when claiming self-defense apply to all trials after the law took effect, regardless of the date of the criminal offense?
BACKGROUND:
Trinity Campbell was an 18-year-old regular user of marijuana and was looking to purchase marijuana from a teen she did not know, Rames Hurley. In June 2019, Campbell asked her friend, 17-year-old Jaidee Miree, to accompany her to meet Hurley in his Cleveland neighborhood. As Campbell drove her Ford Escape, a small SUV, to Hurley’s, Miree directed her to stop at the home of a friend of his who Campbell also didn’t know. They picked up Desmond Duncan, who was 18, and another minor only known to the others as “B.J.” Duncan and B.J. got in the back seat, and the four drove to meet Hurley.
Hurley was completing a marijuana sale to another teen when Campbell pulled up. Hurley then approached Campbell’s SUV and got in the back seat behind Campbell. In her version of events, Duncan was in the cargo hatch of the SUV when Hurley got in the car. He was hiding in the back with the intent of robbing Hurley. Duncan and Miree disagree. They said Duncan was in the back seat behind Campbell and moved to the middle seat when Hurley entered. Campbell agreed to buy $120 worth of marijuana from Hurley. Before the meeting, she texted Hurley that Miree and the other boys were going to buy two $50 bags of marijuana from him.
Hurley put a small scale on the console between the driver and passenger seats to weigh the marijuana, and Campbell said she reached for her money to pay Hurley. Miree grabbed the weighed marijuana off the scale. Hurley then pulled out a handgun. Duncan said he saw the gun and tried to wrestle it away from Hurley. Two shots were fired, one six inches from the passenger side headrest and one closer to the driver’s seat. Duncan said the gun dropped to the ground and he pushed Hurley out of the back driver side door of the SUV. Witnesses, including the teen who purchased drugs from Hurley before Campbell, said they saw Hurley clinging to the door frame before being pushed out. Campbell said when Hurley pulled out the gun, Duncan grabbed Hurley in a bear hug, and Miree repeatedly punched Hurley in the face before Duncan pushed Hurley out of the vehicle. Nearby video surveillance recorded most of the encounter, which lasted less than two minutes from when Hurley entered the SUV until he was pushed out.
At the time Hurley was ejected, the vehicle was moving slowly, and Campbell appeared to be trying to get out of the SUV but was unable to because she was wearing her seatbelt. She quickly tried to drive away but hit a brick column. She then sped off. Hurley suffered a head wound and died. At the direction of Miree, Campbell cleaned the vehicle and disposed of the two bullet shell casings found in the car.
Police Track Down Teens
Because of the damage caused by hitting the column, police quickly tracked down Campbell, and arrested her three days after the June 2019 incident. She was interviewed by police four times, and her story evolved. Police investigators told Campbell the incident appeared to them as if Miree and Duncan planned to rob Hurley and she was part of the plan. Miree and Duncan denied any plan to rob Hurley and stated they were unarmed at the time.
Miree and Duncan were initially charged in juvenile court. Their cases were transferred to adult court, where they faced several charges, including aggravated murder and felony murder based on committing felonious assault. The two were tried together. Miree and Duncan claimed self-defense, arguing the evidence revealed that only Hurley was armed.
Self-Defense Law Changed Before Trial
The trial began in June 2021. Earlier in the year, the General Assembly amended the Ohio “Stand Your Ground” law, R.C. 2901.09. The amendments, which took effect on April 6, 2021, allowed anyone to use force to act in self-defense “if that person is in a place in which the person lawfully has a right to be.”
Attorneys for Miree and Duncan argued the jury should receive instructions on self-defense that omits a duty to retreat, which was required when claiming self-defense before the law changed in April 2021. The Cuyahoga County Prosecutor’s Office argued that the offense took place in 2019 before the new law took effect, and the jury should be instructed on self-defense with the provision that did require a duty to retreat. In this instance, the prosecutor explained that while all the action took place in a moving car, the duty to retreat includes the duty to stop participating in the use of deadly force when it is no longer necessary. Because Duncan disarmed Hurley, there was no longer a duty to use lethal force, the prosecutor maintained. The trial court instructed the jury on the duty to retreat.
The jury acquitted Miree and Duncan of all charges related to robbery or any use of firearms. The two were convicted of felony murder based on committing felonious assault. They were sentenced to life in prison with eligibility for parole after 15 years. Campbell, who testified against the duo, pleaded guilty to lesser charges and was sentenced to four years and nine months in prison.
Miree and Duncan appealed their convictions to the Eighth District Court of Appeals. In a split decision, the Eighth District affirmed the convictions. The two appealed to the Supreme Court of Ohio, which consolidated their cases and agreed to hear their appeals.
Jury Instructions Faulty, Accused Argue
Miree and Duncan filed separate briefs that make substantially the same arguments about whether the jury should have been instructed that the two had no duty to retreat. The briefs explain lawmakers made two revisions to the self-defense law effective April 2021. Previously, R.C. 2901.09(B) eliminated the duty to retreat before acting in self-defense to persons in their residences, vehicles, or immediate family members’ vehicles. Under “Stand Your Ground,” the lack of duty to retreat was expanded to any place in which a person had the lawful right to be.
Lawmakers then added R.C. 2901.09(C), which states, “A trier of fact shall not consider the possibility of retreat as a factor in determining whether or not a person who used force in self-defense, defense of another, or defense of that person’s residence reasonably believed that the force was necessary to prevent injury, loss, or risk of life or safety.”
Miree and Duncan argue that the use of the present tense “trier of fact shall not consider” means that the law applies to any trial conducted after the law took effect in April. The Eighth District disagreed and noted four other appellate courts came to the same conclusion. The appellate court maintained Miree and Duncan wanted the law to apply retroactively to the time of the incident and retroactive application would violate the Ohio Constitution. The two note the Fifth and Eleventh Districts have agreed with their position that the law applies to all trials after the effective date regardless of when the offense occurred, which means the law isn’t being applied retroactively.
The two cite the Supreme Court of Ohio’s 2022 State v. Brooks decision. In that case, the Court considered a recent change to state law that switched the burden of proof in self-defense cases from placing the burden on the defendant to the prosecution. The Court ruled the language used by the legislature indicated it applied to all trials after the law took effect. The lower courts ruled the law applies to all trials after the law took effect relied on Brooks, the two note.
Miree argues the trial court judge presented the jury with a confusing self-defense instruction that harmed his chances of acquittal. Miree maintains he was unarmed in the front seat when Hurley started shooting. Miree didn’t testify at his trial, but Duncan testified he was the only one to touch Hurley. Duncan said he was aware Hurley might be injured from being pushed out of the slow-moving car but didn’t believe it would be deadly. Miree argues based on Duncan’s testimony and the evidence, a proper jury instruction that indicated he had no duty to retreat from the scene would lead to his acquittal. He asks the Court for a new trial.
Duncan argues that lawmakers added R.C. 2901.09(C) to make clear it applies to all trials after the effective date, even if the offenses occurred before the law took effect. If the law only applied to incidents after April 2021, the section wouldn’t be necessary because R.C. 2901.091(B)states there is no duty to retreat and would signal to all trial courts that they don’t need to consider the duty to retreat, he argues.
Duncan and Miree disagree with the prosecutor’s position that Brooks involved a “procedural” change in the law, which could be applied retroactively if the legislature wanted. The “Stand Your Ground” change is a “substantive” change in law and eliminates one of the past requirements to claim self-defense. The office asserts a substantive change to criminal law cannot apply retroactively and would violate the state and federal constitutions. Duncan and Miree counter a substantive change that lessens the burden on a criminal defendant doesn’t violate the state or federal constitutions.
Law Change Doesn’t Apply to Teens, Prosecutor Maintains
The prosecutor notes that Miree and Duncan want to focus on three words – “trier of fact” – to argue the updated law applies to their trial that started after the law took effect. However, the office asserts when the law is read as a whole, it is clear it doesn’t apply to them.
The prosecutor explains that R.C. 2901.09(C ) states, “A trier of fact shall not consider the possibility of retreat as a factor…,” and doesn’t reference whether that applies to any duty to retreat. This means the provision needs to be read in conjunction with R.C. 2901.091(B), which expanded the lack of duty to retreat. This makes the entire law a substantive change in state law. A substantive change would violate Article II, Section 28 of the Ohio Constitution, preventing the enactment of retroactive laws, the prosecutor notes. The prosecutor argues that the new law removes an element from the self-defense claim and alters the legal standards for lawful self-defense. A change in a substantive element of a crime or a defense to a crime relates to the date of the alleged crime. The office argues that applying the law to Miree and Duncan in this case, which occurred in June 2019, would be an unconstitutional application.
State lawmakers are permitted to make substantive changes to the law that apply retroactively, but those revisions must be expressly stated in the legislation, the prosecutor explains. Nothing in R.C. 2901.09 states the law was to be applied to alleged crimes before the effective date of the change. The prosecutor also notes that under R.C. 1.58(A)(3), any reenactment, amendment, or repeal of a law does not affect any law violation, “penalty, forfeiture, or punishment,” incurred before the amendment. In this case, the alleged crime occurred in June 2019, and the criminal proceedings began in March 2020. The change in law can’t apply to the teens’ trial, the office maintains.
Even if the jury were told the teens didn’t have a duty to retreat, the jury likely still would have rejected their self-defense claims, the prosecutor notes. The prosecutor cites the Eighth District ruling, which indicated that the jury might find that Miree instigated the entire situation leading to the fight and Hurley’s death. The appeals court noted Miree grabbed the marijuana without paying. The decision also stated that Miree invited Duncan and B.J. to join them in the Hurley visit, which could be seen as a factor instigating the fight. If Miree and Duncan instigated the fight, then the faulty duty to retreat instruction would have been harmless, the prosecutor concludes.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Prosecuting Attorneys Association.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2022-1449 and 2022-1458).
Contacts
Representing Jaidee Miree: Timothy Sweeney, tim@timsweeneylaw.com
Representing Desmond Duncan Jr.: Russell Bensing, rbensing@ameritech.net
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, dvan@prosecutor.cuyahogacounty.us
Were Concerns About Maumee Natural Gas Pipeline Project Properly Considered?
In the Matter of the Letter of Notification Application of Columbia Gas of Ohio Inc. for the Ford Street Pipeline Project, Case No. 2023-0649
Ohio Power Siting Board
ISSUE: Did the Power Siting Board improperly defer to Columbia Gas in the approval of a natural gas pipeline project and fail to assess the pipeline’s environmental impact?
BACKGROUND:
In December 2022, Columbia Gas of Ohio applied to the state Power Siting Board for approval to construct the Ford Street Pipeline. The utility proposed a 3.7-mile gas pipeline near Maumee to connect to three different interstate pipelines. Columbia Gas stated the new pipeline would provide a more reliable natural gas system for approximately 145,000 customers in Lucas County.
The Columbia Gas application requested an accelerated board review of the project. State law allows an accelerated review and automatic certification of gas pipeline projects that meet certain criteria and aren’t more than 5 miles long. The proposed pipeline would be 30 inches in diameter to use for high pressure natural gas delivery. It would be constructed through easements used by the utility for access to private property and through public road rights of way.
Property Owner Raises Concerns About Pipeline to Run Near Office Building
Yorktown Management owns property and commercial office space sitting near the proposed path of the pipeline. Yorktown indicates the pipeline would run along its entire western property boundary and the centerline of the pipeline would be located 42 feet from the company’s building.
Based on its close proximity to the proposed pipeline, Yorktown was permitted to intervene in the case before the siting board. The company filed comments with the board and communicated directly with Columbia Gas.
The board staff investigated the project. On March 10, 2023, the staff recommended that the project application be approved. Yorktown asked the board to suspend the accelerated project consideration and schedule a hearing for a full review. The board allowed the project to receive automatic approval on March 17, 2023.
The board denied Yorktown’s request for a rehearing. The company appealed the board decision to the Supreme Court of Ohio, which is mandated to hear such agency appeals.
Property Owner Argues Project Not Fully Evaluated
Yorktown states that the pipeline will run along its entire western property line, covering roughly 4 miles, and will be placed within 42 feet of its commercial office building. The property owner maintains it has raised valid and serious safety concerns, and the board failed to properly consider those concerns. The property owner points to another Columbia Gas pipeline project for comparison. For that project, involving a 24-inch diameter pipe, a utility representative testified that a 50-foot easement was necessary to safely maintain and repair the pipeline and address any emergencies that might arise. Yet for the Ford Street project, Columbia Gas is planning for less than 50 feet between the center of the pipeline and the office building, Yorktown argues.
The property owner contends that Columbia Gas used the accelerated process to bypass the requirements in state law for approval of projects. And the board staff failed to address both the company’s concerns and the submitted evidence, Yorktown asserts. When evaluating a project’s compliance with state law, the board must weigh public safety concerns, environmental hazards, and risks to human health. By deferring to Columbia Gas on these issues, rather than investigating the concerns, the board gave “artificial deference” to the utility and abdicated its duty, Yorktown maintains.
Siting Board Maintains Staff Analyzed Project and Environmental Concerns
The siting board responds that the staff report analyzed the need, public interest, convenience, and necessity. They also reviewed the environmental effects on land use, safety, cultural resources, surface waters, and threatened or endangered species. The staff found Columbia Gas would be able to construct, operate, and maintain the project in accordance with safety regulations, the siting board maintains.
The Supreme Court reviews these cases for whether the board decision was reasonable. The siting board argues Yorktown is second guessing the board’s factual determinations and discounting the investigation conducted. The Court shouldn’t reweigh the factual determinations made by the board, it contends. It concludes it considered the project in a reasonable manner, relied on the record, and appropriately exercised its discretion.
Utility Contends No Reasons Were Presented for Further Evaluation
The Court permitted Columbia Gas to intervene in this case. The utility’s brief argues the siting board “did exactly what Ohio law authorized it to do.”
“[E]ven though this Court owes the Board no deference to [the board’s] statutory interpretations, it has always been loath to reverse the Board’s evidentiary conclusions in areas implicating its specialized expertise,” the Columbia Gas brief states.
Although Yorktown alleges the board improperly deferred to Columbia Gas and “fast-tracked” the approval, the utility counters that the board suspends accelerated applications only for good cause. The utility contends no good cause for more investigation was presented.
The utility explains it planned the proposed path of the pipeline along property lines to minimize the impact to existing businesses and to allow for future development. None of the project crosses onto Yorktown’s property, the utility contends. It also notes the 50-foot easement Yorktown referenced about another project was for a different pipeline type with a higher operating pressure. The utility argues that Yorktown offered no evidence that a wider easement was necessary for the Ford Street project.– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Yorktown Management LLC: Thomas Fusonie, thfusonie @vorys.com
Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Amy Botschner O’Brien, amy.botschnerobrien@ohioago.gov
Representing Columbia Gas of Ohio Inc.: John Ryan III, johnryan@nisource.com
Are Stray Cats and Dogs Protected by Felony-Level Cruelty to Animals Law?
State of Ohio v. Alonzo Kyles, Case No. 2023-1182
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Under Ohio’s cruelty to a companion animal law, does a dog or cat have to be cared for or under the physical control of a person to be classified as a companion animal?
BACKGROUND:
In October 2021, Cleveland police responded to a call from an apartment building regarding a complaint about a male dumping bleach in the stairway. The police entered the back stairway leading to the building’s basement and saw a mixture of water and bleach covering the basement floor. Officers heard a cat meowing and found a black male kitten soaked in bleach and lying still on the bleach-covered floor. The kitten had no identification and was not known to belong to anyone in the apartment building.
The officers found Alonzo Kyles sitting on the staircase above the basement area. Kyles said he was afraid of the kitten and poured bleach and water on it to make it leave the building. The kitten was taken to an animal hospital where veterinarian Jennifer Kinney treated him. The doctor observed that the kitten behaved as if it had been socialized and was not feral. She treated the kitten for breaks in the skin on its paws and found the kitten’s paws were injured by exposure to bleach. Kinney performed a pain assessment and determined it wasn’t in any pain. Following treatment, the kitten remained in intensive care for several days.
Kyles was charged with cruelty to animals in violation of R.C. 959.131. The statute, enacted in 2003, can elevate a cruelty to an animal charge involving a companion animal from a misdemeanor to a fifth-degree felony. Kyles asked the trial court to dismiss the case, arguing the stray kitten didn’t meet the definition of “companion animal.” The court disagreed and found him guilty of felony cruelty. He was sentenced to nine months in prison.
Kyles appealed to the Eighth District Court of Appeals, which reversed his conviction and sentence. The Cuyahoga County Prosecutor’s Office appealed the Eighth District’s decision to the Supreme Court of Ohio, which agreed to hear the case.
All Cats Are Companion Animals, Prosecutor Asserts
The prosecutor argues the Eighth District wrongly interpreted the state law and determined Kyles could be charged with a misdemeanor rather than a felony for his actions. The appeals court found that R.C. 959.13, a law in place for over 120 years that generally prohibits cruelty to all animals, could apply to Kyles. The newer law, R.C. 959.131, creates a new felony charge for those who knowingly cause serious physical harm to a companion animal. R.C. 959.131(A) states that a companion animal “means any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept, including a pet store as defined in section 956.01 of the Revised Code. ‘Companion animal’ does not include livestock or any wild animal.”
The Eighth District interpreted “any dog or cat regardless of where it is kept” to mean that a companion animal had to be “kept.” The appeals court ruled that only an animal cared for or under the control of a person is a companion animal, and a stray cat doesn’t meet the definition. The prosecutor maintains that interpretation leads to absurd results and ignores the plain language of the law. The office asserts that the law makes any dog or cat a companion animal, whether it belongs to a person, is lost, abandoned, or a stray.
The prosecutor explains that Ohio law divides animals into three distinct categories – livestock, wild animals, and domestic animals. In response to animal advocates, the General Assembly created a new distinction within the category of domestic animals to provide companion animals people raise as pets with additional protections. The prosecutor argues that R.C. 959.131(A) defines companion animals without requiring them to receive care from a person, and the General Assembly could add such a requirement if it wished.
The clause “regardless of where it is kept” applies to where the animal is found, such as a pet store or dog kennel, and without regard to the animal’s status as a residential pet or community animal that roams a neighborhood, the prosecutor argues. There is no differentiation between stray and owned cats and dogs for the purpose of prohibiting a person from knowingly causing serious physical harm to any dog or cat, the prosecutor concludes.
Animals Must Be Kept for Law to Apply, Accused Asserts
Kyles argues the law must be applied as written. The rules of grammar indicate the inclusion of “regardless of” lays out the conditions that must be satisfied for the law to apply, he argues. The law states a companion animal is “any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept.” An animal that is not kept is not a companion animal, he asserts, and the Eighth District concluded “kept” is defined as cared for or under the control of a person. Since stray cats aren’t cared for or under the control of anyone, they aren’t treated as companion animals but are treated as all animals in general. All animals are protected from cruelty under R.C. 959.13, which is a misdemeanor, he notes.
Kyles maintains that if the General Assembly intended for the companion animal law to apply to strays, it could have defined companions as “any animal that is kept inside a residential dwelling and any dog or cat.” Kyles disputes the prosecutor’s claim that “regardless of where it is kept” applies to the status. If the sentence ended with “any dog or cat,” there would be no need to add further words to define the status of the animals. Kyles asserts the General Assembly decided with its language to provide additional protections to dogs and cats kept by people.
Kyles also challenges the assertion that the state policy is to apply greater protection to stray cats and dogs than to other pets kept by people but not inside. He notes a pet guinea pig or rabbit kept in a backyard hutch would be excluded by R.C. 959.131 because they are not kept in a residence.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the prosecutor’s position was submitted by Alley Cat Allies. The Ohio Animal Advocates also filed an amicus brief supporting the prosecutor. A joint brief in support of the prosecutor was submitted by the Cleveland Animal Protective League, the Humane Society of the United States, and the Ohio Animal Welfare Federation. Also filing a joint brief supporting the prosecutor was the Animal Legal Defense Fund, the Animal Welfare Institute, the Association of Prosecuting Attorneys, and the David Braff Animal Law Center.
– 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 State of Ohio from the Cuyahoga County Prosecutor’s Office: Tasha Forchione, tforchione@prosecutor.cuyahogacounty.us
Representing Alonzo Kyles from the Office of the Ohio Public Defender: Stephen Hardwick, stephen.hardwick@opd.ohio.gov
Representing the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
What Establishes That Drug Trafficking Was Committed in Child’s Vicinity?
State of Ohio v. Niquan M. Dunn, Case No. 2023-1501
Eleventh District Court of Appeals (Geauga County)
ISSUE: Does evidence that a juvenile lives in a residence and was present when drug trafficking was discovered support a conviction for trafficking in the “vicinity of a juvenile”?
BACKGROUND:
In December 2021, Justin Gould’s home in Chardon was searched by the Geauga County Sheriff’s Office because they believed he was involved in drug activity. Law enforcement found methamphetamine in his home Gould was told he could assist law enforcement as an informant to avoid criminal charges. Gould called the man he bought the meth from and arranged another purchase.
Police surveilled Gould’s house during the planned buy and watched a man entering and leaving the house. Gould confirmed he bought meth from the man. Gould and police later identified him as Niquan Dunn.
The police obtained a search warrant for another house in Chardon where they believed Dunn lived. When police entered the house in January 2022, there were multiple adults and a 4-month-old in the first-floor living room. Dunn was found asleep in the basement, where police also found cocaine, meth, mail for Dunn, and other personal items belonging to him.
Allegations Include Felony Committed in Vicinity of Child
Dunn was indicted on multiple drug charges, including a count of aggravated drug trafficking. That count was elevated from a fourth-degree to a third-degree felony based on committing the offense in the vicinity of a juvenile. After a trial in July 2022, the jury convicted Dunn on five drug possession and trafficking counts, including the third-degree felony for trafficking drugs in the vicinity of a juvenile. The trial court sentenced Dunn to three years in prison.
Dunn appealed. The Eleventh District Court of Appeals upheld his convictions. However, the appeals court found the evidence didn’t support the elevated felony for trafficking drugs in the vicinity of a juvenile. The court ruled that a child living in a residence where a crime is committed wasn’t enough to prove the crime was committed while the child was present.
The Geauga County prosecutor appealed to the Supreme Court of Ohio for clarity on what it takes to prove drug trafficking occurred in a juvenile’s vicinity. The Supreme Court accepted the case.
The Ohio Attorney General’s Office filed an amicus brief in support of the Geauga County prosecutor. The prosecutor designated the attorney general as special prosecutor in the case. The Supreme Court accepted the attorney general amicus brief as the brief for the state, and the attorney general will argue the case.
‘In Vicinity of a Juvenile’ Defined in State Law
State law elevates drug trafficking from a fourth-degree to a third-degree felony when the offense is committed in the vicinity of a juvenile. R.C. 2925.01(BB) defines what that means:
“An offense is ‘committed in the vicinity of a juvenile’ if the offender commits the offense within one hundred feet of a juvenile or within the view of a juvenile, regardless of whether the offender knows the age of the juvenile, whether the offender knows the offense is being committed within one hundred feet of or within view of the juvenile, or whether the juvenile actually views the commission of the offense.”
Circumstantial Evidence Proves Crime Was Within 100 Feet of Infant, State Contends
The attorney general argues the evidence presented at trial established the crime was committed in the vicinity of the 4-month old. The state notes direct evidence showed the 4-month-old lived in the home and Dunn prepared the drugs there for distribution. Dunn distributed drugs outside of the house, and he had to pass through the first floor of the home to exit, the state argues. Direct evidence also was presented about the house layout. A detective described the house as one story with a basement. The state’s brief notes that the height of a 10-story office building is approximately 100 feet. When officers conducted the search of the home, Dunn was found in the basement, and the infant was just one floor away, in the first-floor living room.
The state maintains it was reasonable for the jury to draw conclusions from the circumstantial evidence. The jurors reasonably could infer the distance from the basement to the first floor was less than 100 feet. It was also reasonable for the jury to think Dunn would come within 100 feet of the child, or within the child’s view, when moving drugs in and out of the house, the state contends.
The state maintains that the Eleventh District reached the wrong conclusion because it disregarded circumstantial evidence and the reasonable inferences a jury could make from that evidence.
Evidence Wasn’t Enough to Prove Proximity to Child, Accused Asserts
Dunn responds the circumstantial evidence didn’t establish beyond a reasonable doubt that he committed the offense within 100 feet of the infant or in the infant’s view. He notes the prosecutor presented no evidence regarding the square footage of the house, no floor plans, nothing about the size of the home, and no specifics about distances. “Single-family homes come in all shapes and sizes” and have varied layouts, Dunn’s brief states. For example, a 10,000 square foot single-family home is different than a 1,000 square foot one, Dunn notes.
– 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 Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
Representing Niquan M. Dunn: Wesley Buchanan, wes@wesblaw.com