Thursday, February 13, 2025
State of Ohio v. Stephen Coker Jr., Case No. 2024-0087
Sixth District Court of Appeals (Wood County)
Z.J. v. R.M., Case No. 2024-0340
Fifth District Court of Appeals (Richland County)
Disciplinary Counsel v. Judge Timothy J. Grendell, Case No. 2024-1409
Geauga County
State of Ohio v. Elwood Jones, Case No. 2023-0772
First District Court of Appeals (Hamilton County)
Was Victim’s Testimony Explicit Enough to Find Ex-Husband Guilty of Rape?
State of Ohio v. Stephen Coker Jr., Case No. 2024-0087
Sixth District Court of Appeals (Wood County)
ISSUE: When rape charges are made for specific time periods, does the state have to introduce witness testimony describing “sexual conduct” as including penetration for each time period, or can one description of the alleged sexual conduct be applied to all?
BACKGROUND:
A woman identified as “S.O.” in court documents met Stephen Coker Jr. of Toledo at a religious conference in Texas in 2014. Four months later, they married and moved to Toledo. In 2016, they moved to Wood County.
S.O. testified that at the outset of their marriage, they had sex almost every night and that Coker demanded sex multiple times a night. S.O. said the frequency of sex was getting a “little wearing,” and she requested that they have sex less frequently. She then complained that Coker was waking her up to have sex or initiating sex while she was still asleep. In 2019, she left for Texas to take a break from Coker. They spoke by phone and agreed to slow their sexual activity, and she returned to Ohio. However, after about a month, S.O. said the expectations of sex multiple times a night returned. In January 2020, she claimed he pinned her down to have sex, causing bruising on her spine. She left Coker for good, and they divorced. She reported the behavior to law enforcement.
In April 2021, Coker was indicted on three counts of first-degree rape. The charges covered three specific time periods, starting in April 2019 and ending in June 2020. A jury trial was conducted over three days in July 2022.
Wife Testifies in Rape Trial
At the trial, the Wood County Prosecutor’s Office called S.O. as their first witness. In what the prosecutor termed “prefatory testimony,” he asked S.O. a series of questions to introduce the allegations of rape without asking about specific time periods. The prosecutor asked if S.O. would wake up to find Coker was “already penetrating you?” She agreed. The prosecutor then stated, “I don’t mean to be graphic but, specifics, when you say penetrating you does that mean putting his penis in your vagina?” She responded, “Correct.” A few questions later, the prosecutor asked S.O., “Was there any evidence that you saw or felt that seemed to confirm you had sex?” S.O. responded that she would wake up “very, very sore and vaginally swollen.” The prosecutor asked if “that indicated to you that you did indeed have sex?” S.O. said, “Yes.”
The prosecutor then asked S.O. about times the two had sex. He asked her questions what happened during each of the three time periods that the charges covered. She would respond with “had sex,” “have sex,” “sexual encounters,” and similar terms. The jury convicted Coker on all three charges, and he was sentenced to nine to 10.5 years in prison.
Coker appealed to the Sixth District Court of Appeals. Citing the Ohio Supreme Court’s 1983 State v. Ferguson decision, the Sixth District found S.O. used general terms such as “having sex” during the trial but didn’t specify what acts constituted sexual conduct under the state’s rape law during the time periods presented in the charges. The Sixth District vacated Coker’s convictions.
The Wood County prosecutor appealed to the Supreme Court, which agreed to hear the case.
Defining Sexual Conduct Once All Law Requires, Prosecutor Asserts
The prosecutor explains that a rape charge requires the state to prove sexual conduct between the perpetrator and the victim. R.C. 2907.01(A) defines “sexual conduct” in part as “vaginal intercourse between a male and female.” Once the prosecutor, through questioning S.O., affirmed that the term “had sex” meant the two had vaginal intercourse, S.O. didn’t need to reaffirm the meaning of “have sex” every single time she used the term or similar terms on the witness stand, the prosecutor argues.
The prosecutor contends that the Sixth District misinterpreted Ferguson, which involved a victim who didn’t testify that she and a man had sexual intercourse, and didn’t testify that there was any degree of penetration during their encounter. That case is in stark contrast to S.O.’s testimony, in which she defined that “had sex” meant intercourse, the prosecutor argues. The office notes Ohio courts have accepted common words to refer to sexual intercourse to meet the definition of sexual conduct. The Sixth District is trying to create a new exception by requiring that penetration be stated by the victim repeatedly during each time period discussed at trial, the prosecutor asserts, and this unnecessarily retraumatizes the victim.
Through circumstantial evidence and S.O.’s testimony, the prosecutor maintains that the jury understood the context of S.O.’s statements when she used the words “sexual encounters” and other terms when asked to explain what happened during each of the alleged time periods. Her words consistently met the definition of sexual conduct, and the evidence was sufficient to convict Coker on all three charges, the prosecutor concludes.
Acts Constituting Rape Never Specified, Ex-Husband Argues
Coker explains he faced three charges of rape, which alleged he and S.O. engaged in “sexual conduct” when he “purposely compelled her to submit by force or threat of force.” The only distinction among the charges was the three sets of dates when the offenses allegedly occurred. Coker notes that S.O. testified there were times when she consented to sex and times when she didn’t. Coker notes the Sixth District found S.O.’s testimony regarding sexual conduct by force or threat of force didn’t correspond with the dates charged in the indictment. Because the indictment contains specific time frames, the elements of rape must be proven for each time frame, Coker maintains, and the Sixth District found the prosecution failed to provide evidence of the unwanted conduct for each of the stated time frames.
Coker asserts that S.O.’s testimony was ambiguous and that the jury couldn’t infer penetration through the varying terms she used on the stand. He argued that S.O. testified and alluded to sexual conduct when referring to times before the periods charged, and that the state can’t infer those same words applied to the acts that occurred during the periods charged. Coker notes that S.O. used the terms ‘sexual activity,” “sexual encounters,” and “being intimate” during her testimony, and the prosecutor did nothing to denote that those terms were “sexual conduct” under R.C. 2907.01(A).
Because the state has the burden of proof, the Court must not infer that S.O.’s ambiguous testimony regarding sexual acts met the definition of sexual conduct during the periods charged, Coker 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 the State of Ohio from the Wood County Prosecutor’s Office: David Harold, dharold@woodcountyohio.gov
Representing Stephen Coker Jr.: Kathleen Evans, kathleen.evans@opd.ohio.gov
Is Belief That Person Will Cause Mental Distress Enough for Civil Stalking Protection Order?
Z.J. v. R.M., Case No. 2024-0340
Fifth District Court of Appeals (Richland County)
ISSUE: Does R.C. 2903.211(A) require a victim to experience mental distress or only believe a stalker will cause mental distress for a court to issue a civil stalking protection order?
BACKGROUND:
Z.J. and his wife, A.J., were going through a divorce in 2021. They have two children and were sharing visitation. Z.J. had known a man identified as R.M. for years. They were friends until R.M. and A.J. began a romantic relationship around the time of the divorce proceedings.
In November 2021, Z.J. filed a petition in the Richland County Common Pleas Court for a civil stalking protection order (CSPO). He requested protection from R.M. for himself and the minor children. Z.J. stated that he, his children, his girlfriend, and her children were being stalked and harassed by R.M. At the court hearing, the witnesses conveyed that Z.J. and R.M. had a tense relationship, especially during pickups and drop-offs of Z.J. and A.J.’s children. Both men called each other names. There was testimony about R.M. following Z.J.’s car, instigating trouble, and telling Z.J. to hit him. R.M. would rev his motorcycle engine outside of Z.J.’s home until Z.J. came outside. R.M. also followed Z.J. and his girlfriend around a grocery store disparaging Z.J.’s sexual abilities. Z.J. testified that R.M. made no threats of physical harm or violence.
The magistrate granted the CSPO for Z.J., noting a victim only needs to believe the stalker intends to cause him mental distress. The decision noted that R.M. would purposely wait for Z.J. in order to start verbal altercations and push Z.J.’s buttons when dropping off and picking up the children, and R.M. did the same at the grocery store.
R.M. objected to the order and the decision that a victim only needs a belief that the offender will cause mental distress. However, the trial court upheld the protection order, with one minor change. R.M. appealed to the Fifth District Court of Appeals, which affirmed the trial court ruling. The appeals court also certified to the Ohio Supreme Court that there is a conflict among the state’s appellate courts on the mental distress issue. The Supreme Court agreed and will review the conflict.
Actual Mental Distress Needed for CSPO, Man Contends
R.M. argues that Ohio’s menacing by stalking law, R.C. 2903.211, was incorrectly interpreted in his case. He contends that for mental distress, the law only prohibits knowingly causing mental distress to a person or a family or household member. The law doesn’t include situations in which the offender knowingly causes the person to believe the offender will cause mental distress, he maintains.
In his view, the first sentence of R.C. 2903.211(A)(1) should be read this way:
No person by engaging in a pattern of conduct shall knowingly:
- cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person
or
- cause mental distress to the other person or a family or household member of the other person.
R.M. argues the law prohibits actions that cause actual, not possible, mental distress. This position gives courts a test they can apply, he asserts. R.M. maintains that a court can hear testimony about whether the circumstances meet the statutory meaning of “mental distress” – a condition leading to temporary substantial incapacity or a condition normally requiring treatment – and what the impact of that distress is on daily life. He contends that the alternative interpretation allows a petitioner to obtain a CSPO by testifying to a personal belief about the offender’s intent without providing facts regarding the intent.
This view aligns with decisions from the appellate courts in the Fourth, Ninth, and Seventh districts, he maintains. He indicates that appellate courts in the Second, Third, Eighth, and Tenth districts found the opposite, in agreement with the Fifth District.
Stalking Law Encompasses Belief of Mental Distress, State Argues
Z.J. didn’t file a brief and will not argue the case before the Supreme Court. However, the Ohio Attorney General’s Office submitted an amicus curiae brief in support of Z.J. The Supreme Court has allotted Z.J.'s oral argument time to the attorney general.
The attorney general contends that when an offender causes a person to believe the offender will cause either mental or physical distress, that belief falls within the scope of the law, the attorney general maintains.
The attorney general argues for this reading of the first sentence of R.C. 2903.211(A)(1):
The law defines “mental distress” as more serious than how the term is commonly used, the attorney general notes. The attorney general’s brief maintains that a person can foresee mental distress without having experienced it. Stalking involves a pattern of conduct. When a stalker persists in conduct and leads the victim to expect the behavior will continue, the victim may start feeling compelled to change routines and decisions because of the anxiety caused by the stalker, the brief explains. It argues that victims facing harassment with no belief it will end don’t have to wait until their mental health declines before finding assistance through the law. The point of CSPOs is to help victims avoid life-altering harm, either physical or mental, the brief concludes.No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will:
- cause physical harm to the other person or a family or household member of the other person
or
- cause mental distress to the other person or a family or household member of the other person.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing R.M.: Darin Avery, darin.avery@gmail.com
Representing the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
Boys Placed in Detention During Visitation Dispute Central to Allegations Against Judge
Disciplinary Counsel v. Judge Timothy J. Grendell, Case No. 2024-1409
Geauga County
Geauga County Juvenile and Probate Court Judge Timothy Grendell faces a possible suspension from practicing law for 11 violations of judicial and attorney conduct rules. The misconduct found by the Board of Professional Conduct involved a contentious visitation and custody case, ongoing and heated disagreements between his staff and the county auditor’s office, and the judge’s testimony before the Ohio House of Representatives supporting a bill his wife, then a House member, was sponsoring.
The visitation and custody dispute involved the parents of three children – one girl and two boys. The Board of Professional Conduct report concluded that Judge Grendell ordered the boys, who were 15 and 13, to visit their father without considering the children’s comments to the judge, the recommendations of professionals, and the children’s best interests. When the father arrived at the sheriff’s department in May 2020 to pick up the boys, they were scared, crying, and didn’t want to go. The judge was contacted, and he ordered that the boys be taken to the juvenile detention center on charges of being unruly. They were held separately in detention from Friday evening until taken to a Monday court hearing.
The board found that Judge Grendell violated multiple ethics rule in the three disciplinary matters, including failing to promote public confidence in the judiciary’s independence, integrity, and impartiality; failing to uphold and apply the law; abusing the prestige of a judicial office to advance his or others’ personal or economic interests; and improperly offering his testimony at a public hearing before a legislative body. In its report to the Ohio Supreme Court, the board recommends that the judge be suspended from practicing law for 18 months, with six months stayed, with certain conditions.
Judge Grendell objects to the rule violations and recommended sanction, arguing that he committed no misconduct. Because of his objections, the Supreme Court will hear his case during oral arguments. Three amicus briefs were filed in the case in support of Judge Grendell.
Judge Conveys That Mother Was Alienating Children From Father
The board spends about 50 pages of its 88-page report on the custody and visitation dispute between Stacey Hartman and Grant Glasier, who are divorced. A modified custody agreement made in August 2018 designated Hartman as the children’s residential parent and legal guardian and set up a reunification process between Glasier and the children. The children had been resisting visitation with their father, pointing to anger issues. In August 2019, at the request of a domestic relations judge, Judge Grendell took jurisdiction of the case in juvenile court.
During hearings in early 2020, Judge Grendell repeatedly blamed Hartman and her partner for the children’s alienation from their father. He made veiled threats of incarceration if there was interference with the children building a loving relationship with their father.
At the May 2020 hearing where Judge Grendell ordered the boys’ visitation with their father, the judge gave legal advice to the father, prohibited the mother from offering relevant information, and failed overall to consider the children’s best interests, the board reported. After the boys were held in detention for the weekend for not going with their father for a visit, they were brought to the courthouse and kept in a waiting area for a detention hearing.
The prosecutor’s office had determined that the unruly charges against the boys and their detention weren’t warranted. However, when the prosecutor went to the courtroom, she was told she wasn’t invited to the hearing before Judge Grendell. The judge testified later that he had cancelled the hearing. The board report noted, however, that the judge held ex parte discussions with the boys’ lawyers that day. The boys’ mother waited in the court hallway for hours for the hearing without being told it was cancelled. The boys were held from noon until about 3 p.m. when a law enforcement officer asked the judge, who was leaving the courthouse, what to do with the boys. He said to release them to their mother. Later that year, Judge Grendell transferred the case back to the Geauga County Domestic Relations Court.
Among its findings, the board stated that Judge Grendell repeatedly failed to follow the law in the case and has refused to acknowledge the errors. His errors “deliberately side-stepped substantive law and deprived Hartman and the boys of due process and a fair hearing,” the board report found.
In Dispute With Auditor’s Office, Judge Engages With Police
The second count against Judge Grendell stemmed from a disagreement between the Geauga County Auditor’s Office and Judge Grendell and his staff regarding approving invoices, called “vouchers,” for the court. The auditor’s office and the court are located in the same building.
Police were called after one disagreement between the staffs, and a Chardon police lieutenant was dispatched. Judge Grendell eventually arrived in his robe. During the conversation, which was outside on the street, the judge raised his voice and yelled at the officer. The judge threatened to issue a court order and use his contempt powers against law enforcement. The board report said the judge was trying to intimidate the police from investigating court employees for crimes alleged by the auditor’s staff. Soon after the lieutenant returned to the Chardon Police Department, Judge Grendell showed up. He raised possible contempt charges and a federal lawsuit against law enforcement with the police chief. The judge also threatened a city prosecutor with the same.
Judge Testifies Before General Assembly About COVID-19 Reporting
In June 2020, Judge Grendell traveled to Columbus to testify in support of a House bill. His wife, Diane Grendell, was a member of the House and the primary sponsor of the bill. In his testimony, he claimed that the Ohio Department of Health was failing to report daily statistics about the COVID-19 pandemic. He asserted that the department was presenting only “the scary half” of the facts by using only cumulative statistics. The board report noted that the department presented both daily and cumulative data for the daily briefings.
Judge Grendell wasn’t subpoenaed to testify at the hearing, and he wasn’t asked to testify by any judicial association or by the Ohio State Bar Association, the board found. It also determined that the judge’s assertions that the department’s faulty reporting impacted the judiciary and his court “was tenuous, at best, and for the most part, based on inaccurate or untrue information.”
Judge Defends His Actions
In his objections, Judge Grendell explains he was tasked in the Hartman/Glasier case with implementing the visitation agreement and reunification steps between the children and their father. The judge maintains that many of the allegations against him involve supposed legal errors, which should be dealt with in an appeal or other legal proceedings, not in a disciplinary case. The board exceeded its authority and misinterpreted the law, the judge contends.
Judge Grendell asserts that the charge related to the auditor’s office doesn’t consider that he was obligated to protect the integrity of and public confidence in the court as the administrative judge. In his view, it wasn’t professional misconduct to tell the Chardon police and prosecutor why he intended to issue an order to protect the ability of his employees to enter the public office of the auditor to carry out the court’s business.
Judge Grendell argues that his testimony on an Ohio bill involves his First Amendment right to free speech. Because this disciplinary charge raises a constitutional issue, it must be decided by the Supreme Court first, before the Court considers the misconduct allegations. He contends that the judicial conduct rule is unconstitutional because he has the right to testify before a legislative committee about a proposed law or any other issue of public concern.
He maintains that the Court’s disciplinary sanction, if any, should be a public reprimand or, at most, a fully stayed suspension.
Disciplinary Counsel Argues Rules Are Constitutional, Supports Suspension
The Office of Disciplinary Counsel, which investigated the misconduct allegations, reinforces the board’s conclusions and proposed sanction. The office explains that for a judicial conduct rule that bans speech to stand, the state must have a compelling interest for the limitation. Rule 3.2 of the Oho Code of Judicial Conduct, for example, prohibits judges from voluntarily testifying at a public hearing or consulting with a legislative body “except in connection with matters concerning the law, the legal system, or the administration of justice.” The rule is constitutional because it is tailored to advance Ohio’s compelling interests in judicial integrity, public confidence in the courts, and the separation of powers among the branches of government, the office maintains.
– 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 Office of Disciplinary Counsel: Joseph Caligiuri, joseph.caligiuri@sc.ohio.gov
Representing Judge Timothy J. Grendell: Stephen Funk, sfunk@ralaw.com
Was Prosecutor’s Appeal of New Trial for Former Death-Row Inmate Unfairly Denied?
State of Ohio v. Elwood Jones, Case No. 2023-0772
First District Court of Appeals (Hamilton County)
ISSUE: Must an appellate court accept a prosecutor’s request for leave to appeal the granting of a new trial based on claims with arguable merit?.
BACKGROUND:
If a trial court grants a criminal defendant a new trial, state law allows a prosecutor to request permission from an appeals court to block the new trial. Through a motion for “leave to appeal,” a prosecutor can ask the appellate court to review its arguments against a new trial. If leave is granted, the appeals court considers the merits of the prosecutor’s appeal and any opposition.
The Hamilton County Prosecutor’s Office claims the First District Court of Appeals short-circuited the process by unjustly denying its request for leave to appeal when the office challenged a Hamilton County Common Pleas Court ruling. In 2022, the trial court granted death-row inmate Elwood Jones a new trial. At issue is whether the prosecutor presented adequate information in its request for leave to receive permission to move to a full appeal where its arguments against a new trial could be fully presented.
Hotel Worker Accused of Brutally Murdering Guest
In 1994, 67-year-old Rhoda Nathan of New Jersey stayed at the Embassy Suites in Blue Ash near Cincinnati to attend a friend’s family event. She was staying with a couple of friends, one of whom had the only room key provided by the hotel. The couple went to breakfast, locking the door while Nathan stayed behind in the room. The couple returned about 30 minutes later to discover Nathan had been beaten and was bleeding from her head. She also had a missing tooth. Nathan died from the wounds.
One of the friends discovered several hundred dollars missing from her purse, along with Nathan’s pendant necklace. The friend told investigators the pendant was a one-of-a-kind piece of jewelry that Nathan’s late husband had made for her using gold and diamonds from his mother’s wedding band.
Police investigating the scene began focusing on hotel employees and noticed that Elwood Jones and his girlfriend worked at the hotel and were on duty that morning. Jones had cut his hand that morning, and when questioned, he said it happened when taking out trash. He said a few days later he went to the doctor for treatment. Police were suspicious of Jones, which led to a search of Jones’ car. Police reported they had recovered a master key to the hotel, which could unlock any guest room doors, and also found Nathan’s pendant. The physician treating Jones’ hand injury reported the wound contained eikenella corrodens, an organism the doctor indicated was usually found in dental plaque. Investigators suspected that Jones punched Nathan in the mouth, knocking out her tooth. A year after Nathan’s death, Jones was charged with aggravated murder with a death penalty specification.
During discovery, the prosecutor’s office turned over 260 pages of evidence to Jones’ defense attorneys and indicated it was the total of exculpatory evidence that Jones was permitted to receive. At the trial, the prosecutor argued the pendant in Jones’ car was essentially Nathan’s “fingerprint,” pointing from the grave that Jones was her killer. The treating physician testified that eikenella is rarely found in wounds and comes only from “fight bites.” He found Nathan’s mouth contained eikenella. However, Jones’ mouth didn’t contain the organism when he was tested days after he was treated. Arguing that Jones’ wound was caused by punching Nathan and that Jones stole his victim’s pendant, the prosecutor maintained that Jones was the perpetrator.
In 1996, a jury convicted Jones of murder, and he was sentenced to death.
After Evidence Revealed, Reexamined, Judge Grants New Trial
Between 1996 and 2010, Jones made several unsuccessful appeals of his conviction. In a 2010 federal appeal, the court ordered the prosecutor’s office to turn over all investigatory records to Jones. The submission included more than 4,000 pages of evidence. While the federal court denied his appeal, Jones claimed the information in the documents entitled him to a new trial.
In 2019, he sought a new trial from a Hamilton County Common Pleas Court judge. Jones claimed the prosecutor violated the standards of the U.S. Supreme Court’s 1963 Brady v. Maryland decision, which found a criminal defendant is denied a fair trial if the prosecution withholds exculpatory evidence that might benefit the defendant. Jones’ argument to the common pleas court included that Blue Ash police received a phone call in 1995 from a woman, who was told by another woman that her husband killed Nathan and framed another man. Jones also learned Blue Ash police discovered the pendant was bought from a store and wasn’t a unique family keepsake.
Jones also argued that scientific evidence had debunked the eikenella “fight bite” theory and that police knew Nathan was infected with hepatitis B. Jones didn’t have hepatitis B, and medical experts testified it is highly contagious and that the wounds on Jones’ hand most likely would have been infected with hepatitis had he punched Nathan in the mouth.
In 2022, the trial court granted Jones a new trial based on withholding evidence. The trial court also found Jones met the standard under the Ohio Supreme Court’s 1947 State v. Petro decision for obtaining “newly discovered evidence” because the science on eikenella exposure has evolved since 1996. In addition, the court found the hepatitis test results were improperly withheld. The judge released Jones from prison.
Prosecutor Appeals Grant of New Trial
Under Rule 5(C) of the Ohio Rules of Appellate Procedure, the prosecutor sought leave to appeal from the First District, raising two issues. The office argued the phone call about another potential suspect was hearsay and inadmissible in a new trial. It also asserted that the undisclosed Brady evidence wouldn’t justify a new trial because a federal court had considered it and affirmed Jones’ conviction.
The appeals court denied the prosecutor’s request, stating that the prosecutor failed to mention anything about the newly discovered scientific evidence. The prosecutor asked the First District to reconsider its decision, asserting its argument about the undisclosed Brady evidence was meant to include the scientific testing. The First District denied the request again.
The prosecutor appealed the First District’s decision to the Ohio Supreme Court, which agreed to hear the case.
Appellate Court Wrongly Assessed Merits of Appeal, Prosecutor Argues
Under App.R. 5(C), the prosecutor has 30 days to request leave to appeal to contest a new trial. Because the time frame typically is shorter than the time to produce a full trial record, the prosecutor is directed to use portions of the record and sworn statements to explain the trial court’s errors, the prosecutor explains. The rule states the prosecutor must “show the probability that the errors claimed did in fact occur.”
The prosecutor maintains the First District created too high a bar for granting leave to appeal. Instead of assessing whether the prosecutor showed the “probability” of errors, the First District went further and instead looked at the merits of the prosecutor’s arguments. The prosecutor asserts that the First District should have granted leave to appeal and then allowed the prosecutor to file an appeal explaining the reasons why the trial court was wrong. Instead, the First District abruptly concluded the prosecutor failed to include enough information to discredit the trial court’s decision, the office asserts.
The prosecutor argues the use of the phrase “probability that the errors claimed did in fact occur” shows that the request to file an appeal is a “vetting stage” and doesn’t require the prosecutor to “prove” the trial court made errors. Once an appeal is accepted, the prosecutor must provide a merit brief explaining the errors. Instead, the appeals court examined the merits of the prosecutor’s claims before the office could fully present its case, the prosecutor maintains.
The prosecutor asserts the First District’s comments regarding the newly discovered evidence demonstrate the appeals court had gone too far too early in analyzing the case. The First District should have considered the issue only after the prosecutor presented its full argument, the office argues. While leave to appeal gives the appeals court discretion to allow or reject the appeal, the prosecutor maintains the First District has to follow the law when using its discretion. The First District didn’t follow the rules and abused its discretion by not accepting the appeal, the prosecutor concludes.
Appeal Request Factually Wrong and Incomplete, Accused Argues
Jones notes the judge granted a new trial based on two grounds: the failure to turn over undisclosed evidence and developments in scientific knowledge. Jones maintains that no court, including the federal courts, had reviewed all the evidence until the common pleas court heard his case in 2022. The prosecutor failed to note the undisclosed evidence and scientific advancements in its leave to appeal, Jones notes. The request was fatally flawed because it failed to acknowledge the trial judge’s decision regarding the scientific evidence, Jones asserts.
Jones maintains the prosecutor wants to limit the appeals court’s discretion when considering a new trial. The prosecutor asserts that the appeals court only has a “ministerial” duty to accept the appeal if the prosecutor simply follows the requirements of App.R. 5(C). Jones argues the Supreme Court has never overturned an appeals court’s decision granting or denying leave to appeal for such cases, and the appeals court correctly applied the rule when analyzing the prosecutor’s claims.
Jones further states that neither of the prosecutor’s arguments has merit. The hearsay evidence from the caller who heard about the confession would be admissible at trial because it meets at least two exceptions for allowing hearsay evidence, Jones argues. Also, the prosecutor isn’t disputing that it withheld evidence before the 1996 trial that should have been turned over to Jones’ attorneys. The evidence includes results of hepatitis testing, he notes. Jones maintains the federal court uses a different standard for considering evidence, and that the state trial court was the first to fully consider all of his arguments, including the scientific evidence. Even if the prosecutor’s leave to appeal covered the medical testing without mentioning it specifically, the claim that the trial court would be considering evidence previously rejected is untrue, Jones maintains. The prosecutor failed to meet the standard to appeal the case, and the Supreme Court should let the new trial proceed, Jones concludes.
Attorney General Supports Prosecutor
The Ohio Attorney General’s Office submitted an amicus curiae brief supporting the Hamilton County prosecutor’s position and will share oral argument time with the prosecutor. In its brief, the attorney general’s office argues that under the rule, if only one claim made by the prosecutor potentially has merit, then leave of appeal must be granted. The prosecutor made a worthy argument regarding inadmissible hearsay evidence, which is enough to allow the appeal to proceed, the attorney general asserts.
– 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 Hamilton County Prosecutor’s Office: Phillip Cummings, phil.cummings@hcpros.org
Representing Elwood Jones: David Hine, dfhine@vorys.com
Representing the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov